EMPLOYER REPRESENTATIVES' COMMENTS BEFORE Docket No. … · The National Roofing Contractors...

EMPLOYER REPRESENTATIVES COMMENTS ON

THE PROPOSED RULE ON OCCUPATIONAL INflJRY AND ILLNESS RECORDING AND

REPORTING (RECORD KEEPING)

BEFORE THE OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION Docket No OSHA- 2009--0044 (RIN 1218-AC45)

29 CFR 1904

Submitted electronically wwwregulationsgov March 30 2010

These Comments are Endorsed by the Following Employer Representatives

Associated Builders and Contractors Inc The Associated General Contractors of America

American Trucking Associations Inc The Food Marketing Institute

Independent Electrical Contractors The International Foodservice Distributors Association

The International Franchise Association IPC - Association Connecting Electronics Industries The Motor amp Equipment Manufacturers Association

National Association of Home Builders The National Association of Manufacturers

The National Association of Wholesaler-Distributors The National Oilseed Processors Association

The National Restaurant Association The National Retail Federation

The National Roofing Contractors Association The Shipbuilders Council of America

Textile Rental Services Association The US Chamber of Commerce

On January 29 2010 the Occupational Safety and Health Adm inistration (OSHA) published a notice in the Federal Register announcing a proposed revision to the agencys Occupational Injury and Illness Recording and Reporting Rule (the Recordkeeping Rule)1 The groups indicated below welcome this opportunity to comment on questions relating to the Proposed Rule

Associated Builders and Contractors Inc (ABC)-ABC is a national construction industry trade association representing more than 25000 merit shop contractors subcontractors materials suppliers and construction-related firms within a network of 77 chapters throughout the United States and Guam ABC member contractors employ more than 25 million skilled construction workers whose training skills and experience span all of the twenty-plus skilled trades that comprise the construction industry Moreover the vast majority of our contractor members are classified as small businesses Our diverse membership is bound by a shared commitment to the merit shop philosophy in the construction industry This philosophy is based on the principles of full and open competition unfettered by the government nondiscrimination based on labor affiliation and the award of construction contracts to the lowest responsible bidder through open and competitive bidding This process assures that taxpayers and consumers will receive the most for their construction dollar

The Associated General Contractors of America (AGC) is the leading association for the construction industry Founded in 1918 at the express request of President Woodrow Wilson AGC now represents more than 33000 firms in nearly 100 chapters throughout the United States Among the associations members are approximately 7500 of the nations leading general contractors more than 12500 specialty contractors and more than 13000 material supplicrs and scrvice providers to the construction industry These finns engage in the construction of buildings shopping centers factories industrial facilities warehouses highways bridges tunnels airports waterworks fac ilities waste treatment facilities dams hospitals watcr conservation projects defense facilities multi -family housing projects municipal utilities and other improvements to real property Unlike many associations in the industry AGe proudly represents both union and open-shop construction contractors

American Trucking Associations lne is a united federation of motor carriers state truck ing associations and national trucking conferences created to promote and protect the interests of the trucking industry Its members include more than 2000 trucking companies and industry suppliers of equipment and services Directly and indirectly through its affiliated organizations ATA encompasses over 37000 companies and every type and class of motor carrier operation

The Food Marketing Institute (FMI) is a national trade association conducting programs in public affairs food safety research education and industry relations on behalfofits 1500 member companies - food retailers and wholesalers - in the United States and around the world FMIs US mcmbers operate approximately 26000 retail food stores and 14000 pharmacies Their combined annual sales volume of$680 billion represents three-quarters orall retail food sales in the United States FMls retail membership is composed of large multi-store chains regional firms and independcnt supermarkets lts international membership includes 200 companies from more than 50 countries FMls associate members include the supplier partners of its retail and wholesale members

75 Fed Reg 4728 (Jan 29 20JO)

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Independent Electrical Contractors-Established in 1957 IEC is a trade association composed of more than 3500 members with 68 chapters nationwide Headquartered in Alexandria Virginia IEC is the nations premier trade association representing Americas independent electrical and systems contractors IEC National aggressively works with the industry to establish a competitive environment for the merit shop - a philosophy that promotes the concept of free enterprise open competition and economic opportunity for all

The International Foodservice Distributors Association (IFDA) is the leading trade association representing foodservice distributors throughout the Un ited States and internat ionally IFDAs members include broadline systems and specialty foodservice distributors that supply food and related products to restaurants and other food away from home foodserviee operations IFDA members operate more than 700 distribution facil ities representing more tllan $110 billion in annual sales

The International Franchise Association (IFA) is the largest and oldest franchising trade group representing more than 85 industries including more than 11000 franchisee 1200 franchisor and 500 supplier members nationwide IFA protects enhances and promotes franchising by advanc ing the values of integrity respect trust comm itment to excellence and diversity According to a 2008 study conducted by PriccwaterhouseCoopers there arc more than 900000 franchised estab li shments in the US that are responsib le for creating 21 mil lion American jobs and generating $23 trillion in economic output Franchising operates in industries including automotive commercial amp residential services restaurants lodging rea l estate and business and personal services

IPC - Association Connecting Electronics Industries-IPC is a global trade assoc iation dedicated to the competitive excellence and financial success of its 2700 member companies which represent all facets of the electronics industry including design printed board manufacturing electron ics assembly and test As a membcr-driven organization and leading source for indust ry standards training market research and public policy advocacy (PC supports programs to meet the needs of an estimated $ 15 trillion global electronics industry IPC maintains additional offices in Taos NM Arlington Va Garden Grove Calif Stockholm Sweden and Shanghai China

The Motor amp Equipment Manufacturers Association (MEMA) represents more than 650 member companies that manufacture motor vehicle parts for use in the light vehicle and heavymiddot duty original equ ipment and aftermarket industries MEMA represents its members through three affiliate associations Automotive Aftennarket Suppliers Association (AASA) Heavy Duty Manufacturers Associat ion (HDMA) and Original Equipment Suppliers Associat ion (OESA) Suppliers manufacture the parts and technology used in domestic production of new cars and trucks produced each year and the aftennarket products necessary to repair and maintain more than 248 million vehicles on the road today

National Association of Home Builders (NAHB) is a Washington DC-based trade association representing more than 175000 residential home building and remodeling industry members Known as the voice of the housing industry NAHB is affiliated with morc than 800 state and local home builders associat ions around the country NAHBs builder members construct about 80 percent of the ncw housing units making housing a large engine ofeconom ic growth in the country

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The National Association of Manufacturers (NAM) is the nations largest industrial trade association representing small and large manufacturers in every industrial sector and in all 50 states Nearly 12 million Americans work directly in manufacturing- about 10 percent of the overall workforce Manufacturers are committed to working with their employees to improve the safety of their workplaces The NAM appreciates the opportunity to comment on the proposed rulemaking to express the concerns of our members and the impact it has on the terms of the settlement agreement the NAM reached with the Department of Labor on November 16 200 I FR Doc 01-31808

The National Association of Wholesaler-Distributors is comprised of direct member companies and a federation of national regional and state associations and their member finns which collectively total approximately 40000 employers with locations in every state in the United States NA W-affiliated companies are a constituency at the core of our economy - the link in the marketing chain between manufacturers and retailers and commercial institutional and governmental end-users Industry firms vary widely in size employ millions and American workers and account for $45 trillion in annual economic activity

The National Oilseed Processors Association (NOPA) is a national trade association that represents 15 companies engaged in the production of vegetable meals and oils from oi lseeds including soybeans NOPAs member companies process more than 17 bi llion bushels of oilseeds annually at 65 plants located throughout the country including 60 plants that process soybeans

The National Restaurant Association represents the nations 945000 restaurants and foodservice locations that employ nearly 13 million people The restaurant industry is the nations second largest private sector employer

Thc National Retail Federation (NRF)--As the worlds largest retail trade association and the voice of retail worldwide the National Retail Federations global membership includes retailers of all siles formats and channels of distribution as well as chain restaurants and industry partners from the US and more than 45 countries abroad In the US NRF represents the breadth and diversity of an industry with more than 16 million American companies that employ nearly 25 million workers and generated 2009 sales of$23 trillion

The National Roofing Contractors Association (NRCA) is one of the construction industrys most respected trade associations and the voice and leading authority in the roofing industry for information education technology and advocacy Founded in 1886 NRCA is a nonprofit association that represents all segments of the roofing industry including contractors manufacturers distributors architects consultants engineers building owners and city state and government agencies NRCAs mission is to inform and assist the roofing industry act as its principal advocate and help members in serving their customers NRCA continually strives to enhance every aspect of the roofing industry NRCA has more than 4000 members from all 50 states and 53 countries and is affiliated with 97 local Slate regional and internat ional roofing contractor associations NRCA contractor members range in size from companies with less than $1 million in annual sales volumes (40 percent of the current membership) to large commercial contractors with annual sales volumes of more than $20 million More than half perform both residential and commercial roofing work and more than one-third have been in business for more than a quarter of a century

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The Shipbuilders Council of America (SCA) was established in 1920 as the trade association dedicated to representing the interests of the competitive US shipbuilding and ship repair industry SCA members build repair and service Americas fleet of commercial and government vessels The Council represents 44 companies that own and operate over 100 shipyards in 21 states with facilities on all three US coasts the Great Lakes and the inland waterways system SCA also represents 33 affiliate members that provide goods and services to the shipyard industry

Textile Rental Services Association (TRSA)-Founded in 1912 TRSA is the worlds largest textile service industry association representing marc than 1000 linen supply companies uniform rental and commercial and industrial laundry faci lities both domestically and international ly The membersh ip ofTRSA encompasses our nations largest service companies large regional companies and small business one-plant operations TRSA member operating companies rent sell and clean linen uniforms and other textile products for the hospitality industry healthcare facilities industrial plants manufacturers and operations concerned with dust control Collectively our industry represents an over $15 billion marketplace and employees over 170000 people with facilities located in all fifty states

The US Chamber of Commerce (Chamber) the worlds largest business federation with over three million members represents businesses of all sizes and in every market sector and throughout the United States which will be directly affected by the OSHA MSD Recordkeeping regu lation Over 96 percent ofthe Chambers members are small businesses employing 100 or fewer employees For this reason the Chamber is particularly sensitive to the difficulties faced by small businesses in their efforts to interpret and comply with OSHA standards and regulations

I EXECUTIVE SUMMARY

Sections 8 and 24 of the OSH Act direct OSHA to adopt reasonably clear injury and illness recordkeeping rules that will result in the creation of accurate records of significant workshyrelated injuries and illnesses which are demonstrated to be necessary to assist OSHA employers and employees in furthering the objectives of the OSH Act with a minimum burden upon employers The stated purpose of the Proposed Rule is to add a separate column on the OSHA Form 300 Log for conditions referred to as musculoskeletal disorders (MSDs) and a new Section 190412 that would define the term MSD and provide further guidance in using the MSD column The term MSD is a broadly and vaguely defined term of art used to describe a generally unrelated collection of conditions many of which are based entirely on subjective symptoms that are not subject to objective verification Despite many years of study and research the scientific community remains unable to reliably define diagnose or detennine the cause ofMSDs or identify appropriate remedial measures with any degree of precision This absence of medical and scientific consensus on such fundamental issues as how to define an MSD or how best to respond means that OSHAs rulemaking to require employers to record MSDs is beyond what the statutory authority permits

In proposing to broadly define the term MSD to include any disorder of any tissue in the musculoskeletal system which might be evidenced by any subjective symptoms appearing at work OSHA would gloss over both these fundamental scientific shortcomings and the applicable legal requirements of the OSH Act to impose an insurmountable counterproductive and unauthorized recordkeeping burden on employers Contrary to the provisions and objectives of Sections 8 and 24 of the OSH Act the Proposed Rule would require the burdensome collection of

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inaccurate and mislcading data including a multitude of insignificant conditions and a multitude of conditions unrelated to work that would undermine the current recordkccping system produce meaningless and misleading statistical analyses and trigger a misallocation of resources by OSHA and employers -- all of whieh would retard rather than advance workplace safety and health

The Proposed Rule would also make two other material changes to the OSHA Recordkeeping Rule although the OSHA did not highlight these changes and only carefu l reading of the Federal Register notice reveals them First the Proposed Rule would change the currently applicable criteria for recording cases involving a restricted duty or transfer by reVOking the exemption for preventive restrictions established under the Settlement Agreement between the National Association of Manufacturers and OSHA that resolved the NAMs legal challenge to the Revised Recordkeeping Rule issued on January 19 200 I If implemented that change would cause employers to record insignificant conditions and discourage employers from taking proactive preventive measures by penalizing them for taking those measures It would also subject the real world managers of businesses focused on efficiently running their operations to the enormous and distracting burden of determining on an ongoing basis when any subjective deviation from a workers nonnal sense of well ness might potentially rise to the level of an abnormal condition that would constitute an injury or illness and trying to ensure they discover that condition before the worker begins to work

Second having previously determined after an extensive analysis of the issue that all MSDs are injuries the Proposed Rule would without any analysis or discussion of the issue arbitrarily reclassify all MSDs as illnesses The distinction between illnesses generally covered by OSHA health standards and injuries generally covered by OSHA safety standards has potentially enormous consequences No rationale is offered for this apparent about-face in OSHAs characterization of these conditions It is unclear whether OSHA even considered this issue and recognizes this change or whether it was simply trying to ensure that BLS would collect certain data Given the lack of any discussion of this issue and the short comment period provided this rulemaking is not the appropriate forum to address this issue

For the foregoing reasons which are explained in greater detail below we believe it would be inappropriate for OSHA to proceed with the proposed rule and that it should be withdrawn

II INTRODUCTION

The Revised Recordkeeping Rule issued on January 1920012 contained a Section 190412 scheduled to take effect on January 1 2002 which would have defined the term MSD required employers to identify all recordable occurrences ofMSDs by entering a check in a special MSD column and provided further guidance regarding the use of the MSD column 3

2 Occupational Injury and Illness Recording and Reporting Requirements 29 eFR Parts 1904 and 1952 Final Rule 66 Fed Reg 5915 (January 19200)

Section 190412 of the Final Rule read as follows

sect 190412 Recording criteria for cases involving work-related musculoskeletal disorders

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Several intervening events led OSHA to delay and then revoke that rule In March 2001 Congress look Ihe unprecedented slep of rescinding OSHAs newly promul gated Ergonomics Program Standard based at [east in part on the fa ilure of the standard to take into account the scientific controversies and uncertainties underlying MSDs including their means of diagnosis their anribution to work and the nature and effectiveness of workplace interventions designed to address them The MSD provisions in Part 1904 were adopted as compan ion components forthe agencys Ergonomics Program Standard and reflected the same scienti fic shortcom ings

Shortly after the Ergonomics Program Standard was rescinded Secretary of Labor Elaine L Chao announced that she would be conducting a series of fo rums to explore the fundamental controversies and unan swered questions including the appropriate definition ofMSD with the objective of developing a comprehensive approach to ergonomics Recognizing that it would be inappropriate to proceed with a recordkeeping revision that presumed a workable definition of an MSD even as thi s issue was still being debated in the forum s and deliberated within the agency OSHA wise ly extended the effective date ofthe MSD revi sions until January 12003

When Secretary Chao announced her comprehensive approach to ergonom ics on April 5 20024 she found that variations among industries and jobs along with other barriers to a universally app li cab le standard were insunnountable Accordingly she opted for industry-orshytask-specific guidel ines coupled with enforcement measures workplace outreach and additi onal research into the science underlying MSDs The comprehensive plan did not include a s ingle definition for MSDs To the contrary as stated by the agency (68 FR 38602 col 2)

(a) Basic requirement Ifany of your employees experiences a recordable work-related musculoskdewl disorder (MSD) you must record it on the OSHA 300 Log by checking the musculoskeletal disorder~ column

(b) Implementation ( I ) What is a musculoskeletal disorder or MSD Musculoskeletal disorders (MSDs) are disorders of the muscles ncrves tendons ligaments joints cartilagc and spinal discs MSDs do nOt include disorders caused by sl ips trips falls motor vehicle accidents or other similar accidents Examples of MSDs include Carpal tunnel syndrome Rotator cuffs)ndrome Dc Quervains disease Trigger finger Tarsal tunnel syndrome Sciatica Epicondylit is Tendinitis Raynauds phcnomenon Carpet layers knee Hcrniatcd spinal disc and Low back pain

(2) low do I decide whieh musculoskeletal disorders to record There are no special criteria for determining which musculoskeletal disorders to record An MSD case is recorded using the same proccss you would use fo r any uther injury or illness If a musculoskeletal disorder is work-related and is a new case and meets one or more of the general recording cri tcria you must record the musculoskeletal disorder The following table will guide you to the appropriate section of the rule for guidance on recording MSD cases (i) Determining if the MSD is work-rclated See sect 19045 (ij) Dctermining if the MS D is a new case See sect 9046 (iii) Determining if the MSD meets one or more of the general recording criteria (A) Days aWlly from work see sect 19047(b)(3) (8) Restricted work or transfer to another job or see sect 19047(b)(4) (C) Medical treatment beyond first aid See sect 19047(b)(5) (3) If a work-related MSlgt case involves only subjective symptoms like plIJn or tingling do I have 10 record it as a musculoskeletal diso rder Thl symptoms of an MSD are treated the same as symptoms for any other injury or illnesslfan employee has pain tingling bUrning numbness or any other subjective symptom of an MSD and the symptoms arc work-related and the case is a new case that meets the recording criteria you must record the casc on the OSHA 300 Log as a musculoskeletal disorder

4 huplloshagovplSoshu webowad ispshow_ documentp _ wblc=NEWS _ RELEA SESampp _ id= 1230

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OSHA recognized that MSD is a term of art in scientific literature that refers collectively to a group of injuries and illnesses that affect the musculoskeletal system and that there is no si ngle diagnosis for these disorders [emphasis addedJ

Furthermore OSHA has explic itly stated that no single definition ofergonomic injury [isJ appropriate for all eontextss In making these determinations OSHA again properly acknowledged that additional research into MSDs was necessary in order to create and im plement a clear concise definit ion--if possib le-of what constitutes an MSD Accordingly OSHA further extended the effective date of the MSD provisions of Seclion 1904 until January 12004

On June 30 2003 OSHA fonnally announced its determination that the MSD co lumn was not necessary or supported by the rulcmaking record and the MSD provisions in Section 190412 were revoked 6 On November 17 2004 the National Advisory Committee on Ergonomics (NACE) announced that it was unable to reach a consensus on the definition of the tenn MSDs and further concluded that agreement on a definition of the tenn would not help to reduce their number7

The pursu it of a single definition ofMSDs has not reached consensus The variousnumerous MSD definitions cover a host of conditions limited only by those doing the defining none of which directly help to reduce the number of such disorders OSHA should continue the development of guidelines independent of any final definition of MSDs8

Nothing has changed since June of2003 to provide the definitional content and certainty that was lacking when Section 190412 was revoked in June of2003 nor has OSHA offered any scientific or other support ing evidence to the contrary in this rulemaking It has become abundantly clear that OSHAs earl ier conclusion was and remains correct- the term MSD remains a broad ly and vaguely defined term of art that means different things to different people Accordingly no workable definition of work-related musculoskeletal di sorders is currently possible in light of the limited medical understanding of those disorders their multi-factorial etiology and their subjective nature Against this backdrop of great uncertainty and without a new foundation the agency acting under a new political administration would have us accept the idea that the unworkable MSD provisions in the Proposed Rule are necessary for the agency to carry out its statutory responsibilities under the Occupational Safety and Health Act (the OSH Act) We respectfully disagree For OSHA to proceed with the Proposed Rule would be man ifestly inappropriate and it should be withd rawn

III SUMMARY OF POINTS

567 Fed Reg 44124 col 3 (June 30 2003) ~68rR38601 http wvvwoshagovSLTCergonomicslreeommendationshtmI bull More revealing is the initial version of this point as approved by the Guidelines Workgroup before it was presented to the full committee on November 172004

There is nol a widely-agreed upon definition of musculoskeletal disorders (MSDs) so thc Workgroup decided that the pursuit ofa definilion of MSDs is unproductive suggesting that NACE OSHA and others should continue their work and not get caught up in finding a definition hnploshagovSL TClergonomicslnace_ mins_ ll _ 2004html

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A OSHAs assertion that the proposed rule would simply require the employer to review the cases that have been recorded on the OSHA 300 Log make a determination as to whether they are MSDs and ifso place a check in the MSD column is based on the erroneous premise that the current level of scientific knowledge is adequate to identify diagnose and determine the cause of conditions known as MSDs

B The Proposed Rule would improperly require employers to record conditions on the OSHA 300 Log that (I) are not significant and (2) have no meaningful relationship to the workplace

C The Proposed Rule would require employers to make detenninations that go beyond their abilities and the abilities of many medical professionals Employers would be faced with the untenable choice of recording a condition which does not have an adequate definition or immediately undertaking extensive inquiries often into an employees otherwise private medical history and personal life to enable the employer to make the necessary detenninations (whether an injury work-related preexisting etc)

D The incorporation of the MSD provisions into the OSHA recordkeeping system will produce materially inaccurate and misleading injury and illness records of disparate and unrelated conditions that will result in a misallocation of OSHAs resou rces

E OSHA has materially understated the costs of compliance with the proposed rule and has no factual basis for certifying that the Proposed Rule would not have a significant economic impact on a substantial number of small entities and therefore avoiding compliance with the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act

F The proposed rule does not comply with the Paperwork Reducti on Act

G OSHA omitted material information and mischaracterized the nature and scope of this proposal by erroneously stating that the Proposed Rule would not change the currently applicable criteria for recordability

H There is insufficient time to implement the proposed rule by January I 20 10

For the foregoing reasons which we address in further detail below we believe it would be inappropriate for OSHA to proceed with the Proposed Rule and that it should be withdrawn

IV OVERVIEW OF OSHAS STATUTORY AUTHORITY

OSHAs authority to require the recording and reporting of work -related injuries and illnesses is provided and limited by Sections 8 and 24 ofthe aSH Act

Section 8(c)(2) of the aSH Act provides that the Secretary of Labor shall prescribe regulations requiring employers to maintain accurate records of work-related deaths injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment loss ofconsciousness restriction of work or motion or transfer to another job 29 USC sect 657(c)(I) (emphasis added)

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Section 8(d) of the OSH Act provides that any information obtained by the Secretary the Secretary of Health and Human Services or a State agency under th is Act shall be obtained with a minimum burden upon employers especially those operating small businesses It also provides that unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible 29 US C sect 657(d)

Section 24(a) of the OSH Act provides that in order to further the purposes of the Act the Secretary of Labor shall develop and maintain an effcctive program of collection compilation and analysis of occupational safety and health statistics It also provides that the Secretary shall compile accurate statistics on work injuries and illnesses which shall include all disabling serious or significant injuries and illnesses whether or not involving loss of time from work other than minor injuries requiring only first aid treatment and which do not involve medical treatment loss of consciousness restriction of work or motion or transfer to another job 29 USC sect 673(0)

Under these provisions OSHA has the authority onlv to require the recording of serious illnesses and injuries that are caused by conditions in the workplace In construing these provisions reviewing courts will be guided by the fact that much of the Act was drafted with the intent of limiting the Secretarys authority Industrial Union Dept AFLn CIO v American Petroleum Inst 448 US 607 651 (1979) (Benzene) (it is importantto note that Congress repeatedly expressed its concern about allowing the Secretary too much power over American industry)

Sections 8(c)(2) and 24(a) quoted above grant OSHA the limited authority to require the recording of serious illnesses and injuries Under sect 8(c) OSHA may only requ ire the recording of injuries and illnesses that are other than minor Similarly under 24(a) OSHA may require the recording only of disabling serious or significant injuries and illnesses other than minor injuries

The legislative history of the Act makes clear that these limitations on OSHAs authority are the product of specific deliberation and are not to be ignored The early versions qfthe Act would have required employers to record all workmiddotrelated deaths injuries and illnesses9 These broad proposals were expressly rejected by the Conference Committee and omitted from the final version of the Act According to the Conference Report

A Senate bill provision without a counterpart in the I-louse amendment permitted the Secretary to require an employer to keep records and make reports on all workmiddot related deaths injuries and illnesses The House receded with an amendment limiting the reporting requirement to in juries and illnesses other than of a minor nature with a specific definition of what is not ofa minor nature [emphasis added] 10

9 SecS 2193 91st Cong 2d Sess (1969) reprinted in The Leislative Historv of the Occupational Safety and Health Act of 1970 204 251 (Comm Print 1971) (Legis Hist) see also 11K 16785 9 1st Congo 2d Sess (1970) reprinted in Legis His at 950 (same) H R No 91-1291 accompanying HR 16785 3t6 39 9lstCong 2d Sess (1970) reprinted in Legis Hist at 831 869 10 Conf Rep No 91-1765 accompanying S 2193 91st Cong 2d Se~s at 37 (1970) rcprinted in Legis Jli sl J 154 at 1190 (emphasis added)

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Read together and in accordance with other generally applicable principles of law we believe the referenced portions of the OSH Act direct OSHA to adopt reasonably clear injury and illness recordkeeping rules that will result in the creation of accurate records o[significant workshyrelated injuries and illnesses which are demonstrated to be necessary to assist OSHA employers and employees in furthering the objectives of the OSH Act with a minimum burden upon employers We further believe that the term significant injuries and illnesses is limited to those conditions for which medical treatment restricted duty or days away from work is or would be required by a qualified medical professional who properly examines the affected employee and is in possession of and reviews the information needed to make an informed medical determination Given varying levels of knowledge and expertise within the medical profession and the pressures to make quick decisions with less information than would be desirable employers need the ability to obtain a second opinion from someone they believe to be more qualified on the bas is of expertise or newly available information The Proposed Rule fails to meet these critical statutory requirements and is therefore beyond the authority granted OSHA for these purposes

As explained more fully below adoption of this proposal will result in cmployers recording cases o f minor subjective symptoms rather than of significant injuries and conditions that will not have a meaningful nexus to the workplace In addition employers would be compelled to expend inordinate resources in an attempt to comply with this rule and the final product would be inaccurate records of unre lated conditions providing no valuc to workplace safety and health

V PROPOSED SECTION 190412

The Proposed Rule would add a new Section 190412 that reads as follows

Sec 190412 Recording criteria for cases involving work-related musculoskeletal disorders

(a) Basic requirement If any of your employees experiences a recordab le work-related musculoskeletal disorder (MSD) you must record it on the OSHA 300 Log by checking the musculoskeletal disorder column

(b) Implementation--(l) What is a musculoskeletal disorder or MSD MSDs are disorders of the muscles nerves tendons ligaments joints cartilage and spinal discs MSDs DO NOT include disorders caused by slips trips falls motor vehicle accidents or other similar accidents Examples of MSDs incl ude Carpal tunnel syndrome Rotator cuff syndrome De Quervains disease Trigger finger Tarsal tunnel syndrome Sciatica Epicondylitis Tendinitis Raynauds phenomenon Carpet layers knee Herniated spinal disc and Low back pain

(2) How do I decide which MSDs to record There are no special criteria for determining which MSDs to record An MSD case is recorded using the same process you would use for any Olher injury

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or illnesslfan MSD disorder is work -related is a new case and meets one or more ofthe general recording criteria you must record the case as an MSD in the MSD column The following table will guide you to the appropriate section of the rule for guidance on recording MSD cases

(i) Determining if the MSD is work-related See Sec 19045 (ii) Determining if the MSD is a new case See Sec 19046 (iii) Determining if the MSD meets one or more of the general

recording criteria (A) Days away from work See Sec 19047(b)(3) (8) Restricted work or transfer to another job See Sec

19047(b)(4) or (C) Medical treatment beyond first aid See Sec 19047(b)(5)

(3) If a work-related MSD case involves only subjective symptoms like pain or tingling do I have to record it as an MSD The symptoms of an MSD are treated the same way as symptoms for any other injury or illness You must record the case on the OSHA 300 Log as an MSD if

(i) An employee has pain tingling burning numbness or any other subjective symptom of an MSD

(ii) The symptoms are work-related (iii) The MSD is a new case and (iv) The case meets one or more of the general recording criteria

(4) When do I have to start recording work-related MSDs on the MSD column You must begin recording work-related MSDs on the MSD column as of January 12011 11

VI DISCUSSION AND ANALVSIS

A OSHAs assertion that the proposed rule would simply require the employer to review the cases that have been recorded on the OSHA 300 Log make a determination as to whether they are MSDs and if so place a check in the MSD column is based on the erroneous premise that the current level of scientific knowledge is adequate to identify diagnose and determine the cause of conditions known as MSDs

OSHAs assertion is apparently based on an ideal world where the alleged hazard and its injury and illness consequences are clearly discernable and definable Unfortunately with MSDs they are not As OSHA previously admitted and as the proposal itself demonstrates the term MSD is a broadly and vaguely defined tenn of art used to describe a generally unrelated collection of largely subjective conditions not subject to objective verification Despite many years of study and research the scientific community remains unable to define diagnose or determine thc cause ofMSDs or identify appropriatc remedial measures with any degree or precision On November 17 2004 after an extended series of discussions involving numerous revisions to its draft guidelines which highlighted the scientific uncertainties surrounding the

I I 75 Fed Reg 4741 col 3 (Jan 29 2010)

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causation and prevention ofMSDs the National Advisory Committee on Ergonomics (NACE) adopted the following guideline recommendation 12

MSDs are a consequence of exposures to risk factors of a multi -factorial nature Although the exact cause ofa specific MSD may not be known and the prccise effectiveness of an intervention may not be predictable the objective of ergonomics is to reduce to a practical min imum the demands such as physiological cogn itive behavioral of doing the work by controlling these exposures To this end a number of tools and guidelines may be usefu l

In other words although we do not know what conditions caused a given MSD and we do not know what intervention might eliminate the undetermined (occupat ional andlor nonshyoccupational physiological cognitive andlor behavioral) conditions that caused thc MSD NACE explained that there is a process called ergonomics that has as its objective reducing the demands of work with the apparent hope of reducing the frequency and severity ofMSDs

In this context OSHAs assertion that the Proposed Rule represents a minor bookkeeping exercise is simply absurd It overlooks the practical aspects of how the rule wou ld be implemented in the rcal world It ignores the fact that the proposal would effect a material change in the current recordkeeping criteria OSHA also fa ils to acknowledge that the proposed changes combined with the statement that the MSD data will be used to target enrorcement efforts 3--despite its acknowledgement that no single definition of MSD is suitable for all purposes--will force employers to engage in a far more comprehensive analysis in assessing potential MSD cases than they currently undertake

I No acceptable definition ofMSDs currently exists

Ergonomics wou ld be a far less controversial subject if the al leged hazard and its injury consequences were clearly discernable and definable Unfortunately they are not The scientific communitys inability to agree on a definition ofMSDs is evidence of the confusion surrounding ergonomic issucs and provides a compelling argument against creating a separate MSD column for recording these ill-defined conditions

The depth of the current uncertainty regarding the appropriate definition ofMSDs is evident from the countless substantively distinct definitions that have ci rculated in recent years A striking example of the divergence in definition is underscored by comparing the National Academy of Sciences (NAS) definition with OSHAs NAS has defined a musculoskeletal disorder as an alteration in an ind ividuals usual sense of well ness or ability to function

12 hnplloshagovSLTCergonomiesnace _ mins_11 _ 2004html Il middotIn addition to its statistical value the MSD column would provide valuable information to assist OSHAs inspection outreach guidance and enforcement efforts Each year OSIIA collects summary data Irom OSHA 300 Logs from approximately 80000 establishments and uses them to schedule targeted inspections in high hazard industries The summary data are comprised of the totals for each column on the OSHA 300 Log These data include totals for the number of injuries and illnesses cases with days away from work cases involving restricted work Of job transfer and cases of each specific illness listed on the log However the summary data do not includc any data specifically on MSDs Restoring the MSD column on the OSHA 300 Log would provide the Agency with such data 75 Fed Reg 4732

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which mayor may not be associated with well recognized anatomic physiologic or psychiatric pathology14 OSHAs rescinded ergonomics standard defined MSDs as disorders of the muscles nerves tendons ligamentsjoints cartilage blood vessels or spinal discsl s The NAS definition- an alteration in an individuals usual sense ofwellness- highlights properly we might add the ephemeral nature ofMSDs which lack the precision of understanding needed to regulate or record them The proposed OSHA definition is divorced from the medical and

16scientific reality that belies the physiological linkage it presumes

OSHA cites to the definition ofMSDs used in the ANSI AIOAO-2007 standard for Reduction of Musculoskeletal Problems in construction as support for its approach of using spec ific examples of MSDs in the definition to help illustrate the types of disorders the definition is intended to cover17 However for several reasons the ANSI AIOAO standard is not an appropriate authority supporting OSHAs approach This putative voluntary consensus standard was adopted without the required substantial agreement among materially affected interests and the Committee that adopted the Standard lacked the necessary balance with the Committee dominated by the faction favoring adoption of the Standard The Committee failed to give considerat ion to opposing views or to put forth a concerted effort toward resolving negative comments and objections and the Committee was unable to--and did not- provide a rationale relevant to thc comments when overruling negative ballots ls Each one ofthese deficienc ies reflected a fundamental failure of due process that eliminates any pretense that ANSI A I 040-2007 should be considered a national consensus standard as that tcnn is used in Sections 3(9) and 6(b)(8) of the OSH Act In addition beyond these fundamental defects the defined tenn musculoskeletal problems is not being used in the ANSI Al 0040 standard to define MSDs It is being used to define a much broader set of conditions that would trigger some type of response under the type of ergonomics program standard that was adopted by OSHA at the close ofthe Clinton administration and subsequently invalidated by Congress under the Congressional Review Act

In fact even somc ofthe organizations favoring regulation have recognized that MSDs are shrouded in definitional conflict and uncertainty ME Greer president of the American Society of Safety Engineers in 2000 noted that at least two hundred different definitions are available adding

It almost seems as if we are using the Field of Dreams approach to ergonomics with thi s question Instead of a line of cars coming to the field to play bal l at the end of the movie we now have thousands of safety health and environmental professionalslining

I National Research CounCil NAS Muscllloskelelal Djsorders and the Workplace Iow Back and Upper Extremities at 1-15 (200 I) [I kninafter NAS Report J jl 65 Fed Reg 68853 (Nov 142000) 16 Washingtons state OSIIA plan adopted essentially the same ergonomics standard as OSHA did in 2000 but the standard wa~ rescinded on a referendum vote in which the lack of adequate definition ofMSDs played a role in energizing publ ic opposition Most people know that when medical diagnoses are not well-defined some people will abuse the system to get time off or additional pay 17 75 Fed Reg 4734 col I (Jan 29 2010) IS Sec The American SlIbCOnlraClors Association Inc ef al v American Society OSaety Engineers in its capacity as the Secretariat for the A I 0 Accredited Standard Committee Respondent Apptal of Action on American National Standard A 1040 Reduction of Musculoskeletal Problems in Construction Before the ANSI Buard of Standards Review November 9 2007

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up in the bullpen trying to get their definitions up on the pitchers mound 19

Definitions of MSDs are not only multitudinous and conflicting but they also Jack the sine qua non of any definition ofa scientific tenn-precision and replication ofoutcome In other words without objective verification that can be duplicated by all employers who make the final decision to record recording MSDs is pure guesswork an amputation is an amputation a 10 db STS is a 10 db STS an MSD even today is anyones guess

Testifying in the California ergonomics rulemaking which led to the adoption of a rule limited to repetitive stress injuries meeting specified criteria Dr Blair Filler of the California Orthopedic Association commented on the problem that faced the State of California then and OSHA now

Organic diseases will have well -defined systems [in] which there are measurable and I underline measurable objective findings lthat] occur in a specific site with pathologic findings and have a well-defined course Organic disease[s] have a predictable response to treatment programs

Repetitive strain injury is based on subjective complaints with no measurable objective findings Theres variable-sided involvement theres no pathologic findings and an unpredictable course and a poor or variable response to treatment Symptoms based solely on subjective complaints are difficult to correct for one cannot address treatment to a non-existing finding Repetitive strain injury does not conform to accepted human response patterns20

Objective standards for MSD diagnosis are essential Unfortunately it is equally clear that medical science is not yet capable of providing such standards

In most areas of medical research such as studies involving suspected carcinogens the relevant health outcome is clearly understood and readily identifiable In the field ofergonomics however profound uncertainties as to outcome definition impair the effectiveness and usefulness of scientific analyses Even the National Institute for Occupational Safety and Health (NIOSH) whose 1997 survey of existing research formed the heart of OSHAs scientific case acknowledged that the scarcity of objective measures (including physical examination techniques) to define work-related MSDs and the lack of standardized criteria for defining MSD cases can make study comparisons difficult 21

In the end the disparate definitions serve primarily to disclose the problems inherent when MSD concepts encompass such a huge range of poorly understood symptoms signs disorders or injuries--each one unique As Dr Tapio Videman observed

Each of these disorders has its own biological basis The etiology epidemiology and natural history of each disorder would have to be established All these disorders would have a distinctive set of risk

19 Testimony ofME Greer before the OSIIA Forum on Ergonomics July 17 2000 (hltplwwwasscorgngcomm66 htmgt 2() Testimony of Dr Blair Filler CR 001205 January 18 1996 ~ j National Institute for Occupational Safety and Ilealth (NIOSI-I) Musculoskeletal Disorders and Workplace Factors A Critical Review of the Epidemiologi c Evidence for Work-Related Musculoskeletal Disorders of the Neck Upper Extremity and Low Back at 1-7 (J 997) [Hereinafter NIOSI-I Repon]

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factors-known and unknown Each would respond to a different set of treatment and prevention programs Each disorder should be considered individually22

No conclusion as to etiology the necessary predicate for recording can be drawn without separately analY-ling each d isorder Even if this agglomerat ion ofMSDs could be-as they must be-sharply limited to a spec ified group of object ively defined and diagnosable conditions each condition is so different that one column with one definit ion cannot responsibly or scientifically encompass them all

As OSHA exp lained when it revoked the MSD column in June of2003

However the total number [ofMSDs] standing alone tells noth ing about the specific types of disorders that may be involved The MSD definition in sect 190412 encompasses a broad range of health conditions from back injuries to carpal tunnel syndrome Thus the total MSD count in an establishment could include a number of disparate disorders that have little in common More importantly the lotal number ofcases tells nothing about the poss ible causes and prevention of ergonomic hazards Simply know ing that a certain number of MSD cases have occurred does not permit one to determine which jobs or working conditions pose ergonomic hazards and how they may be abated

To effect ively analyze and address [MSDsJ that are occurring in workplaces employers and others must be able to link specific types of injuries to specific characteristics ofjobs or working conditions This requires evaluation of each individual case to determine the part of the body affected the nature of the job performed by the injured employee and other relevant data Such information is currently available in the case-description section of the 300 Log and in the 301 Incident Report Evaluation of these case-entry data particularly the job title and the description of the injury and affected body part conta in ed in Columns C and P on the 300 Log will enable employers workers and OSHA to identify specific types ofMSDs to link specific MSD inj uries to specific ergonomic risk factors and to identify trends in certain jobs or work practices over time

The MSD column would not assist with the kind of detailed analysis necessary to effectively abate MSDs at the establishment level Conscientious employers employees and authorized representat ives who wish to address MSDs in their workplaces wi ll do so as they have in the past by examining the entire Log whether or not an MSD colum n is implemented Some employers and others may wish to use the sect 1904 12 definition ofMSD as part of their comprehensive records analysis or they may wish to use a

II Slatemelll oj Tapia Vide man March 2 2000 OSI IA Docket No S-777 Exh 32-24 1middot3-20 a12 16

different definition more suited to their specific working conditions For example nursing home emp loyers may wish to focus particularly on back cases in analyzing the effectiveness of patient lifting and repositioning abatement measures On the other hand employers and others who do not wish to perform a comprehensive analysis would not be able to use an MSD column as a substitute for the analysis

To the extent that the aggregate total of MSD cases is of some relevance the number can easily be determined without a column Based on the description-of-injury information in column F of the Log one can very quickly identify which cases are MSDs under the sect 1904 12 definition or an alternative definition such as the one in OSHAs meatpacking guidelines The MSD column is simply not necessary for this purpose For these reasons OSHA concludes that the MSD column wou ld not be a useful tool at the estab lishment level

If the column provides no useful infonnation at the establ ishment level surely th is aggregate of information cannot provide any useful infonnation at a national level

In light of the existence of over two hundred definitions ofmusculoskeletal disorder and the lack of any true consensus as to what constitutes an MSD they are simply indefinable We respectfully submit that OSHAs contemplated imposition ofa single definition upon employers for recordkeeping purposes would be arbitrary and inconsistent with the statutory purposc of record keeping to compile accurate statist ics on work injuries and illnesses [emphasis added] 23

2 Any definition must be limited to those conditions that are objectively verifiable

If despite the lack of supporting science OSHA persists in requiring employers to record MSDs in a separatc column OSHA should limit its definition ofMSDs only to those conditions that are objectively verifiable The following portion of OSHAs proposed deti nition discussed in more detail infra includes subjective symptoms and is not satisfactorily limited to objectively verifiable cond it ions


(i) An employee has pain tingling burn ing numbness or any other subjective symptom of an MSD


2J 29 USc sect 673(a)

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More specifically the statement You must record the case on the OSHA 300 Log as an MSD if (i) An employee has pain tingling burning numbness or any other subjective symptom of an MSD appears to state that any pain tingl ing burning or numbness involving any tissue of the musculoskeletal system (eg the muscles nerves tendons ligaments joints cartilage and spinal discs) is deemed to be conclusive evidence of the existence of an abnormal cond ition or disorder known as an MSD

The proposed definition exceeds OSHAs statutory mandate of addressing illness and injury that is both work~related and significant and contravenes two of the key principles articulated for the Department s approach to ergonomics-- feasibility and clarity24 OSHA simply should not be in the business of validating as ergonomic injuries the normal aches and pains of lifc--feelings of discomfort that are a response to not only both work and non-work activities but also to the normal aging process and other personal health factors such as weight or genetics~ th rough an arbitrary and unscientific diagnostic that assigns determinative significance to subjective symptoms by officially labeling them as MSDs5

The need for a definition of MSDs with clear objective parameters is hardly a new or unsupported concept The NAS Report urged that

The National Institute for Occupational Safety and Health should take the lead in developing uniform definitions of musculoskeletal disorders for use in clinical diagnosis epidemiologic research and data collection for surveillance systems These definitions should (1) include clear and consistent endpoint measures (2) agree with consensus codification of cl inically relevant classification systems and (3) have a biological and clinical basis 26

The 1997 NIOSI-I report also noted the utility ofobjective defin itions It would be useful to have a concise physiopathological definition and corresponding objective clinical test for each work-related MSD 27 While there are distinct problems with NIOSI-Is methodology as detailed in prior comments28 it is hard to argue with the simple conclusion that objective definitions are crucial

Individual experts also agree Dr Peter Nathan a clinician and researcher with over thirty years of experience argues strongly in favor of an objective detinition pointing out that failure to require a strict object ive definition for ergonomic injuries will allow a wide variety of diffuse and non-pathologic conditions to be included under the umbrella of ergonomic injury Inclusion of these non-pathologic conditions in the category of ergonomic injury will allow all forms of activity-related soft tissue discomfort including those presentations ofbenign excrtional myalgia that are a natural and nonnal physiologic consequence of resisted physical activity to be considered an injury29In other words employees who are sore after exercise would be able to claim they have an MSD

The importance ofon objective defin ition for recordkeeping purposes is self-evident If

24 66 Fed Reg 31695 (June 12 2001) httpwwwoshagovplsoshawcbowad ispshow documcntp tablc=FEDERAL REGISTERampp id=16696 2~ Slalement oStanley Bigos July 9 2001 OSI-I Docket No S-777 Exh 7-40-lOal 1=2 shy26 NAS Report at ES- 7 27 NIOSH Report at 1-7 28 OSHA Docket No 5-777 Exh 32-241-4 at 107-112 29 Statement 0 Peler Nathan July 9 2001 OSHA Docket No 5-777 Exh 7-40-12 at 4

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there is any hope of discerning the work-relatedness of any particular individuals condition it can be realistic only for physical cond itions that can be seen and measured The challenge for researchers will be insurmountable ifthey-much less employers and treating physicians--are asked to first record and then address subjective signs or symptoms that cannot even be seen or measured much less attributed to a specific cause As OSHA stated in the preamble to its proposed ergonomics standard 30

[TJhe multi-dimensional pattern of personalized risk factors nonshywork risk factors and external work-related risk factors complicates etiology identification As with other chronic and subshychronic diseases it may be difficult and sometimes impossible to differentiate between underlying morbidity and causative exacerbating or even disabling features (stressors) in the external environment

OSHA further acknowledged in that preamble regulatory interventions targeting MSDs posen specific challenges for disease identification3 l MSDs are admittedly different from the more traditional workplace disorders that OSHA regulates and requires employers to record OSHA recognized that those traditional disorders and exposures have discrete and identifiable effects and therefore exposure assessment does not require signil1cant attention to individual work factors or personal factors or there may be a consensus test for disease (as for noise)n OSHA properly contrasted MSDs with these hazards that are capable of measurement

For MSDs on the other hand microanatomic injury and repair is often sub-clinical and genera)y invisible to clinical testing or surveillance measures Although the object of much active research the relationship between sub-threshold injury and the onset ofrecognizcd clinical disorders is imprecisely understood Because of regional and individual differences in diagnosis and treatment disease recognition depends on professional practice diagnosis and treatment patterns B

OSHA correctly noted that MSDs are not easily identifiable it logically follows that MSDs are not easily recordable

In addition the lack of an objective definition would preclude the intolerable outcome of holding employers strictly liable for recording the ubiquitous aches and pains of daily life The proposed definition ofMSDs for recording purposes would cross this line by requiring employers to record virtually every employee complaint of pain numbness stiffness or any other subjective symptom that is alleged to be associated with work Indeed by eliminating the language from the NAM settlement see infra no level of employee discomfort will be beyond review and potential recording

3 Subjective complaints cannot be reliably or systematically defined or equated with injury

The need for an objective definition is underscored by the unreliability of basing a

J() 65 Fed Reg 65867 col 2 (Nov 23 1999) l i d J2 Id )) 64 Fed Reg 65868 col 1

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definitional framework on subjective facto rs MSDs are largely characterized by reports of subjective symptom s such as pain to which OSHA would add tingling burning numbness or any other subjective symptom of an MSD Yet these symptoms lack observable physical pathology and largely escape objective diagnosis This is not to say that these conditions are imaginary or the prod uct of malingerers However without accompanying physical damage that can be detccted and obse rved these genuine subjective sensations defy coherent medically valid attempts at definition or rcsponse Purely subjective sensations such as pain particularly in the musculoskeletal system vary as infinitely as the number of human beings They depcnd upon a myriad of indefinable factors such as pain threshold and psychosocial and socioeconomic factors the definit ive classi ficat ion or prognosis for which demands knowlcdge that exceeds the limitations of modcrn medical science OSHA s proposed definition would great ly complicate this analysis through an allmiddotcncompassing definition that would include any subjective symptom regardless of frequcncy severity or duration

The question posed in this rulcmaking is whether as a matter of fact and law thesc subjective symptoms can be or must be recorded as a distinct work related cognizable injury We submit that the answer is no and that until medical sc ience can separate the objective from thc subjective OSHA cannot require employers to d iagnose and separately record MSDs

It would be a grave mistake to reject evidcncemiddotbased medicine in favor of the vicw that such subjecti ve symptoms are propcrly recordable becausc they reflect emerging musculoskeletal injury or illness34 or that pain or di scomfort in the fsresence of physical risk factors indicatc that a worker is suffering from an incipient MSD S OSHA has historical ly posited that such subjective ind icators are injury or illness OSHA believes that pain or other symptoms indicate an injury or illness 36 That assertion is wrong both as a mattcr of sc ience and as a matter of public policy

In truth pain and inj ury are poorly correlated As Dr Videman noted It is important to remember that pain is not a disease not a good cli nical sign or a quantifiable symptom It is simply a vague subjective complaintJ7 Pain is a symptom resulting from a sensat ion rccognized by the brain lS Inj ury is mcdically observable damage to ti ssue39 Muscul oske leta l pa in can be a symptom of stress fatigue or poor conditioning but in and of itself it does not establish injury4o

Studies have shown that workers often develop symptoms symptoms that they reflexively attr ibute to the physical demands of their jobs but that typica lly are not accompanied by any actual objective evidence ofdisease4

In technical terms musculoskeletal symptoms and disabi lity are often experienced in the absence of tissue pathology physical injury or pathophysiology42 Individuals with the same condit ion in fact often report widely variable symptoms43 As the World Health Organization concluded at its January 2000 meeting

H 64 Fed Reg 65783 3S Statemem ofTapiu Vide man March 2 2000 OSHA Dockct No S-777 Exh 32-241-3-20 at 2middot3 36 66 Fed Rcg 602 1 col I (January 19 200 I) 11 Slatemem ufTapio Vidlt m(m July 9 2001 OSIIA Docket No S-777 Exh 7-40-6 at 3 ]I Statement ofStanley Bigos March 2 2002 OSI IA Docket No S-777 Exh 32middot241 middot3~ at 2 l~ d at 2 4-5 Id at 2 Statement afArthur Barsky July 9 200 1 OSIIA Docket No S-777 Exh 7~0-7 at 2 42 Id 4) See id at 2-3

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Discomfort aches pains commonly categorized as sprains and strain are undocumentable and predicated on many non-physical factors44

The most widely recognized researcher in the field of low back pain AlfNachemson confirmed these di stinctions Very rarely does back pain signal seri ous diseasc4S The research shows that even in those who have back pain for more than six weeks only 15 percent of cases result in the diagnosis of specific disease or pathology46 Conversely a substantial portion of patients who have objectively identifiable sEinal alterations evidenced by changes detectable on an x-ray or MRI report no back pain at all 7

The NAS Report likewise includes a slightly different- but fully consistent- articulation of the same critical principle According to the NAS there is an important distinction between

the experience of being ill or sick (symptoms other discomforts dysfunctionality fear and social impacts) on the one hand and disease a biological event characterized usually but not invariably by definable and objective change (for example abnonnalities in Xshyrays blood tests or on exam ination of the heart) on the other48

We respectful ly subm it that OSHAs statutory mandate to record extends only 10 the latter and not to the fo rmer

4 Inclusion of subjective symptoms in the definition would improperly medicalize conditions that arc universal in the general population and generally self-resolving

By recording subjective symptoms as musculoskeletal injuries OSHA would elevate experiences that are universally present in the general population to a medica l crisis Fifty to sixty percent of Americans experience back pain every year 80 percent experience it in their Iifetimes49 Regional muscu loskeletal pain is an intermittent and remi ttent predicament oflife writes the respected researcher and physician Dr Nortin Hadler without regard to ones occupation 1 i]1 is di stinctly unusual to live a year without having had to cope with a backache or 3 years without having to cope with arm painso Roughly 15 percent of the general population

sl(workers and non-workers) experience pain numbness and tingl ing in the hands Further at any given time more than 20 percent of the population complains of neck pain and up to two thirds of Americans will experience neck pain in their lifetime 52 At any poinl in time up to 10

44 Slatement oStanley Bigos March 2 2002 OSH A Docket No Smiddot777 Exh 32middot24 1middot3-4 at 5 bull5 Slatement 0AIfNachemson March 2 2002 OSHA Dockct No Smiddot777 Exh 32middot24 1middot 3middot 12 3t 6 46 Deyo R amp Phillips W Low Back Pain A Primary Care Challenge 21 SPINE 2826-2832 (1996) 41 d ~ NAS Report at middot6 49 Loney P amp Stratford P ne Prevalence 0Low Back Pain in Adults A Methodological Review athe Literature 79 PHYSICAL THERAPY 3 84middot396 (1999) Frymoyer 1 amp Durell 1 The fcollomics aSpinal Disorders in I TI IE ADULT SPINE PRINCIPLES AND PRACT ICE 143middot ISO (Frymoyer 1 cd Li ppincolmiddotRaven 2d ed 1997) See 010 Von KorfT M el af An epidemiologic comparison apain complaints 32 PAIN 173middot183 (1988) Valkerbcrg H amp Ilaanen II The Epidemiology 0Low Bock Pain in SYMPOSIUM ON IDIOPATH IC LOW BACK PAIN 9middot22 (White A amp Gordon S eds t982) so Statement aNartin Hadler July 9 200 1 OSHA Docket No Smiddot 777 7middot40-3 a12 SI Annunen S et al An Allele ofCOL9A2 Associated with Intervertebral Discs Disease 285 SCIENCE 409-412 ( 1999) S2 COle P et al The Saskatchewan Ilealth and Back Pain Sunmiddotey The PrelOlence 0Neck Pain and Related

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percent of Americans report upper extremity pain sufficient ly severe to interfere with ordinary activities53 while up to 35 percent have such pain sometime in their lives 54

By throwing these common transient self-resolving incidents into an overly broad defi nition ofMSD and recording all employees who experience them as ill or injured- with their employers responsible for their injuries-OSHA would risk significant harm to the very workers it is pledged to protect Amplification through recordation of transient symptoms is likely to hinder the path to recovery55 Moreover since the vast majority of these incidents- 95 percent of all symptoms according to surveys---do not currently prompt a visit to the doctor even a small change in the way they are classified and treated could have serious impacts on the health care system and its ab ility to cope with all forms of injury and illness56 OSHA should be very wary of proceeding down that path particularly when the prospects for a successful journey are so speculative

5 The proposed revocation of the exception under which minor musculoskeletal discomfort is not classified as a restricted work case would greatly exacerbate the fundamental problems posed by the lack of a scientific foundation for the MSD column

Under the current OSHA rule a case is recordable if there is an injury it is new it is work-related and it meets the severity criteria Unfortunately rather than establ ish ing a directly applicable and objective measure of severity OSHA adopted a rule that to a significant extent opts for administrative convenience over accuracy In other words it relics to a significant extent - the boundaries of which has never been clear-on a proxy for the severity determination- ie did the case result in days away restricted duty transfer or medical treatment

Before the 2001 rule took effect the Secretary recognized that literal application of that rule was likely to lead to inaccurate statistics by recording insignificant cases This result would be contrary to Sections 8 and 24 of the OSH Act and would undermine the practice followed by many employers in implementing proactive work restrictions or transfers to prevent a condition that would be described as minor musculoskeletal discomfort from progressing to the severity of a recordable injury We say undermine in the sense that it appears the rule would have converted these insignificant conditions into recordable cases because it appeared that an employer would be taking a substantial risk of adverse enforcement action in concluding that they were not injuries That was one of the factors that led the NAM to file a suit challenging the 2001 rule

The NAM suit was resolved in a November 19 200 I settlement agreement between the NAM and the Secretary Under that settlement agreement the Secretary agreed to include the following interpretation of its Revised Recordkeeping Rule in its initial compliance directive for the rule

A case is not recordable under 19047(b)(4) as a restricted work case if the employee experiences minor musculoskeletal

DisahiliTY in SaskaTchewan AdulTS 23 SPINE 1689-1698 (1998) S) HaIL W amp Morrow L Repetition STrain Injury An Australian Epidemic ofUpper Limb Pain 27 SOC SCI MED 645-649 (1988) A Id ss See eg STaTemenT 0Arthur Barsky July 9 2001 OSIIA Docket No S-777 Exh 7-40-7 at 17- 18 Y Id at 18-19

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discomfort a health care professional determines that the employee is fully able to perform all of his or her routine job functions and the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing

This provision was designed to avoid the recording of insignificant cases and ensure that employers could continue to implement truly preventive mod ifications to work assignments without the penalty of having to record the case as a restricted work case The adoption of this provision reflected a sound public policy determination by OSHA that- as required by the statutory mandate - favored accurate statistics over administrative convenience and encouraged proactive employer measures likely to advance employee safety and health

The official interpretation of the current rule based on the NAM settlement agreement - that preventive restrictions to address minor musculoskeletal discomfort are not recordable cases - has now been in place for over eight years and as such has acquired a status akin to regulatory text It is an essential tool that has been relied upon by many employers and their service organizations in addressing workplace efficiency comfort and safety issues Rather than being eliminated it needs to be expanded to reflect the realities of managing these issues especially for a small business We believe there are a significant number of cases in which supervisors and employees are able to make these decisions without the need to incur the significant expenses ofa medical consultation and the lost productivity of an employee sent off site for that consultation

Unfortunately based on the clarification provided by representatives ofthe Secretary during the question and answer session on Tuesday March 9 2010 it now appears clear that OSHA has proposed to take a giant step backwards As part of this ru lemaking OSHA would amend the current protocol by revoking the interpretation from the NAM settlement agreement which provides that preventive restrictions to address minor musculoskeletal discomfort are not recordable cases51

According to OSHA the agency proposed this amendment to the current rule to eliminate any potential for confusion and furthermore OSHA believes that the language in the Compliance Directive is not necessary because sect 19044 of the Recordkeeping regulation clearly and ful ly specifies when cases involving work restrictions and transfers must be recorded58

Underthe agencys theoretical decision -tree approach if a new work-related condition falls into the category of an injury or illness vaguely defined as an abnormal condition or disorder59 any subsequent transfer or work restriction responding to that condition would be recordable The reality of the human condition is that a feeling of perfect wellness is a neeting experience of youth and an alteration in an individuals usual sense of well ness or ability to function is entirely subjective

While it may seem simple OSHAs theoretical decision-tree approach simply is not suited

n 75 Fed Reg p 4735 co12 (Jan 29 2010) 5S 75 Fed Reg p 4735 col 2-3 (Jan 29 2010) y 29 erR 190446(3)

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to assessing conditions referred to as MSDs Unfortunately the assessment of MSDs is often based entirely on reports of subjective symptoms that vary greatly in terms of their level duration and frequency and the individuals perception of those conditions is often driven by psychosocial factors As a result application of the decision tree becomes a circular boot-strapping exercise in which implementation ofa work restriction in response to a workplace hint or suggestion ora possible or potential alteration in an individuals usual sense of well ness or ability to function leads to the conclusion that there was an injury and that it was work -related

Recognizing that OSHAs decision tree appeared to ignore these realities the NAM filed a suit to challenge this approach and OSHA then agreed to an exception to recordability for voluntary or preventive job restrictions This proposal would eliminate that necessary and reliable connection with reality leaving employers exposed to the risk of adverse enforcement actions if they were to instead rely on the ability to screen out minor musculoskeletal discomfort as not meeting the threshold definition of an injury

The rationale now offered by OSHA in support of this proposed change to the criteria for a restricted duty case is wholly unpersuasivc OSHA says that the agency is making this change to avoid confusion as to what is recordable We see it to be quite the opposite Leaving aside the intractable issue of causation employers currently understand that minor musculoskeletal comfort does not encompass persistent and significant pain and does not encompass any condition that the medical community would view as a manifestation of a significant injury By removing the NAM settlement language it appears likely that OSHA would treat any reported subjective symptom as rising to the level of an injury Clearly the outcome would be to grossly inflate the number of recordable cases by recording insignificant conditions that were never intended to be recorded by Congress The result would be inaccurate and misleading statistics that would cause OSHA and employers to misallocate resources to inSignificant cases

The unstated rationale for the proposed change in interpretation we believe is OSHAs beliefthat employers game the system by having employees report to their workplace but not perform any meaningful work to avoid lost workday cases If a physician evaluates the employee and determines that the employee is only fit for limited duty the case is clearly recordable But OSHAs new approach ignores the fact that employees equally game the system by seeking medical practitioners who prescribe time offor restricted duty without an adequate basis for the limitation OSHAs proposed approach will likely lead to employers not giving ~mployees the time to recover from minor fatigue and soreness and lead to employees doctor shopping thereby encouraging fraud 60 The current interpretation balances the various interests and

60 An anecdotal example of this was reported in the March 1920 10 issue of INJURY PREVENTI ON amp COST CONTROL ALERT

In my first three months here we had four lost-time accidcnts Obviously that was unacceptable And it was especially troubling because the injuries involved hadnt really appeared to be very serious

to sprain here a strain theremiddot not the kinds of debilitating injuries that should force people to miss a lot of work A little investigating revealed the real problem

The common thread was the chiropractor they were all seeing We had a company doctor but if workers didnt like what she said they went to this guy Light duty vs no duty

Our company doc whos actually very conservatiw might say You can go back to work but with two weeks of restriltted time Thc chiropractor on the other hand didnt care It was easy money for him Hed just say Youre off for two weeks

24

competing pressures to make sure only serious disabling and significant injuries are recorded while giving a medical expert the job of gatekeeper to the process OSHA shou ld not change this approach


If the phrase s ignificant injury in Section 24 ofthe OSH Act is to have any meaning a rule defining cases as recordable must distinguish between those that are transient manifestations of discomfort and those that are medically cognizable diagnoses It appears that under the proposed rule in practical effect every employee report to the employer of pain soreness discomfort or other undefined subjective symptom manifesting itself at work- regardless of level duration cause or frequency- would be a recordable case if

(1) the employee expressed a concern that he might not be able to perform all of the functions of his job or (2) the cmployer took a conservative approach and implemented a work restriction to prevent the condition from becoming significant

OSHAs proposal would in effect remove the word significant from the definition of recordable cases in Section 24 of the OSH Act

Furthermore there are likely to be many cases in which an employee has a premiddotexisting cond ition from another job or recreational activity Suppose without mentioning this condition to the employer the employee engages in some work before the subjective symptom manifests itself or became more pronounced possibly because the condition was affected by psychosocial factors The employee then goes to the employer and describes the subjective complaint Under this proposal if the employer implements any preventive restriction it appears OSHA would assert that the preventive restriction reflected the existence of a significant workmiddotrelated aggravation of the condition making the case recordable

Suppose the employee does mention the prcmiddotexisting condition to the employer before beginning work and they agree the employee will try to work his nonnal job and report back to the supcrvisor if the employee experiences some discomfort After two hours the employee ind icates that he is becoming uncomfortable and the employer assigns restricted duty Again under this proposal it appears OSHA would assert that the preventive restriction reflected the existence ora significant workmiddot related aggravation ofthe condition making the case recordable These are just some examples of insignificant cases that appear to be recordable under the proposed rule and have no meaningful relationship to the workplace

C The Proposed Rule would require employers to make determinations that go beyond their abilities and the abilities of many medical professionals Employers would be

Of course restricted time is a lot better for us Weve got plenty of light-duty work available The solution We said were not going to recognize that chiropractor unless the company doctor

specifically sends you there I fthe company doctor recommends a specialist of course well honor that Otherwise if you want to take reSiricted days off you need to take vacation or sick days Since making that call our lost days have gone way down

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faced with the untenable choice of recording a condition which does not have an adequate definition or immediately undertaking extensive inquiries often into an employees othenvise private medical history and personal life to enable the employer to make the necessary determinations (whether an injury work-related preexisting etc)

The Proposed Rule would require employers to choose between two burdensome and wholly unjustified options

(I) over-recording and bearing the costs of that approach (eg targeted OSHA enforcement and public shaming) or (2) incurring the enormous costs required in an effort which would generally be fruitless to appropriately decide whether a case is recordable and adequately document the basis for that determination

OSHA acknowledges that there is no universally accepted definition ofMSDs and that different definitions are used for different purposes Despite the uncertain science as to the causes ofMSDs OSHA indicates in the preamble that it is intent on using this data primarily to target its enforcement efforts 61 Under the current recordkeeping system we believe some significant number of employers have been inclined to record a case that would be classified as an MSD rather than invest the substantial human resource management medical and employee resources in a detailed investigation to try to determine whether the condition was a new work-related injury or whether it represented a preexisting condition Given the perception of many employers that the purpose of the MSD column is to target employers for enforcement many of those employers will now feel compelled to spend the substantial additional resources required to more thoroughly investigate and document their findings in those cases that may not be recordable

To avoid erroneously recording a case that is not a new work-related injury or a significant aggravation of a pre-existing injury the employer would be required to develop sufficient medical expertise among supervisory and human resources personnel to know when an employee would be capable of continuing in a job and when job activity would pose an unreasonable risk of further injury Where that is either not practical or inadequate to make the required determinations the proposed ru le will create a strong incentive for employers at enormous cost to send every potential MSD case to a qualified medical professional to assist in making these determinations in spite of the fact that many medical professionals will be unable to make the required determinations The medical professional at a local clinic will rarely have access to the information in the employees medical files that would often be necessary to make an informed judgment as to whether a case is a new work-related injury Given these circumstances there will be many erroneous determinations as to whether conditions are new whether they arc injuries whether they arc work-related and whether they rise to the level where restricted dutytransfer is actually required at that point in time or whether they are at a minor or insignificant level where one might recommend a preventive restriction

The unfairness of this situation is further compounded by OSHAs position on the consequences offailing to complete this complicated investigation and make a determination on a timely basis This activity would have to be completed in time for the advice obtained from the qualified medical professional to be considered contemporaneous with any contrary or ambiguous diagnoses that may already have been provided This will often require sending employees away from work to participate in those additional medical consultations

61 75 Fed Reg 4738 col 3 (Jan 29 2010)

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The 2001 Revised Recordkeeping Rule placed employers in the impossible position of balancing between the privacy interests of the employee in his or her medical records and the regulatory directive to discover whether the employee has a recordable MSD under the OSJ-IA Injury and Illness recordkeeping rule The adoption of this proposal will return employers to that impossible choice

D The incorporation of the MSD provisions into tbe OSHA record keeping system will produce materially inaccurate and misleading injury and illness records of disparate and unrelated conditions that will result in a misallocation of OSHAs resources

I The asserted value of the MSD column to workplace safety and health is based on the erroneous premise that MSDs are conditions with a common work-related etiology that cao be identified and prevented with common workplace measures

The serious shortcomings in the proposed rule are due to many factors There is an inadequate understanding as to the causal factors for the conditions referred to as MSDs We believe OSHA recognizes that the etiology ofMSDs is often multi-factorial and that it often will not be clear whether the precipitating event occurred in the work environment or elsewhere Studies published by the Cochrane Collaboration and Dr Stanley Bigos et at since 2000 raise questions about OSHAs biomechanical-based theory ofMSD causation and the remedies for low baek pain based on that analysis Other studies on conditions such as carpal tunnel syndrome further undermine the conclusion that work activities are a primary cause of these eonditions62 We note that OSHA has not made any effort to suggest that its analysis of the science related to the causation ofMSDs in issuing this proposal has been updated implying instead that the science has remained static over the last ten years Even the short bibliography noted here shows that there has been a substantial amount of published research on the diagnosis and treatment of soft tissue injuries that undermine many of OSHAs 2000 era ergonomic theories

OSI-IA otTers a number of unpersuasive explanations as to why the MSD column would provide valuab le information to OSHA employers and employees First OSHA asserts that the MSD column would improve the quality of OSHA national stat istics on MSDs and assist OSHA in gaining an understanding of the number and rate ofMSDs as ifMSDs were conditions with sufficiently common characteristics to logically place into a single grouping for purposes of counting analysis and the development of interventions expected to reduce their frequency and severity Second OSHA asserts that the MSD column would assist the agency in targeting inspection outreach guidance and enforcement efforts at MSDs Third OSHA asserts that having an MSD column at the establishment level would assist cmployers and employees in quickly identifying and tracking the incidence ofMSDs at the facility All of these asserted benefits are based on a faulty premise that the term MSD refers to a common set of conditions

6 For example the following studies suggest that CTS is not caused by computer use or related to work activities of railroad workers CarfXjf Tlnnel Syndrome and Keyboard Use al Work A Population-Based Study Atroshi I Gummesson c Ornstein E Johnsson R and Ranstam J Arthritis amp Rheumatism Vol 56 No 11 November 2007 pp 3620-3625 Carpal Tunnel Syndrome in Railroad Workers Cosgrove James L MD Chase PM Mast NJ and Reeves R American Journal of Physical Medicine amp Rehabilitation Vol 81 No2 pp 101 -107

27

that can be well defined and that the cause of these defined condition can be detennined Unfortunately that is not the case MSDs are not comparable to skin disorders or respiratory illnesses One generally avoids respiratory illnesses by implementing measures that avoid inhalation of toxic materials and avoids skin disorders by avoiding dermal contact with toxic materials In the workplace these causative agents can be identified Because the etiology of MSDs is far more complex and the causative agents so poorly identified there arc few if any changes that reliably can be adopted by employers to mitigate the complaints that the new regulation would requ ire employers to record

The absence of a workable definition of the term MSD effectively prevents the implementation of any simple checkbox system for recording MSDslfthe best and most current medica l research is incapable of giving scientists and doctors a reliable way of deciding whether a particular case is an MSD and what caused that condition then it would be folly to assume that employers could make reliable and accurate determinations To proceed with a checkbox system despite the absence ofa clear definition moreover would produce records and statistics that would be at best unreliable and at worst affinnatively mislead ing Policymaking enforcement decisions and resource allocation would all be adversely affected

2 OSHAs other suggested rationales for an MSD column are not persuasive

In addition to an MSD column being unworkable inaccurate misleading and inconsistent with the OSH Act we believe it is also appropriate to address the other explanations ofTered by OSHA for this initiative OSHA suggests that the current method for determining the number of MSD cases is complicated because (I) it requ ires close cooperation between OSHA and BLS since MSDs were not recorded in a single column and (2) it also requires special computer analyses to calculate MSD numbers63 Is OSHA sincerely suggesting it should impose any new recordkeeping obligation on the private sector much less one ofthis magnitude because two agencies within the Department of Labor would otherwise have to cooperate with each other Is OSHA sincerely suggesting that it should impose any new recordkeeping obligation on the private sector much less one of this magnitude because BLS would have to continue applying a simple piece of soflware that it has been using for the last 10 to 15 years and wh ich is far less complicated than the software used by BLS to determine that its annual survey of approximately 350000 worksites provides a statistically valid basis for the extrapolations used in its annual reported estimates of work-related injuries illnesses and deaths covering 6 million worksites

OSHA asserts that it is also reconsidering restoring the MSD column in light of recent information that indicates employers are record ing fewer and fewer cases as days away from work cases OSHA seems to be suggesting something sinister is underway In reality BLS has reported declining days-away case rates for the last 10 to 15 years which suggests that the programs of the prior administrations were effectively advancing workplace safety and health OSHA further asserts that this reduction in the number of days away cases increases the importance of understanding what is happening with the other kinds of cases which are nOI reflected in the BLS detailed case characteristics analyses This is a non sequitur One can see what is happening by looking at the BLS statistics which show that DJRT (days ofjob transfer or restriction only cases) rates have been fairly flat from 2003 through 2008

63 75 Fed Reg 4730 citing 66 FR 6030

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OSHA asserts that recently concerns have been raised about accuracy of workplace injury and illness records which somehow would justify the need fo r an MSD column Concerns have been raised about the accuracy of workplace injury and illness records for as long as they have been maintained just as they have been raised about the accuracy ofevery other government-mandated recordkceping system The recently raised concerns were the politically motivated concerns raised in the hearing before the House Education and Labor Committee which led to a politically-driven StafTReport titled Hidden Tragedy Underreporting of Workplace Injuries and Illnesses The StafTReport concluded not surprisingly that workshyrelated injuries and illnesses in the United States are chronically and substantially underreported As a result the Democratic-controlled Congress authorized additional funds for OSHA enforcement of OSHAs Recordkeeping Rule and in effect directed the agency to go find this huge group of alleged scomaws that according to the academic studies media reports and worker testimony was grossly under-reporting workplace injury and illness cases For the past six months OSHA has been sending out teams of OSHA recordkeeping auditors in support of this Congress ionally-inspired National Emphasis Program on Recordkeeping Despite these wideshyranging intrusive and extremely burdensome invest igations by specially trained inspectors using medical access orders and subpoenas we have yet to hear of any evidence that would suggest sign ificant non-compliance in the private sector much less evidence of pervasive non-compliance on the scale alleged by the StafT Report

Indeed the only report in recent years assessing employer record keeping habits concluded

Overall Accuracy ofEmployer Recordkeeping The percent of establishments classified with accurate rccordkeeping (at-or-above the 95 percent threshold) is above 96 percent for both total recordable and DART injury and illness cases Based on 95 percent confidence intervals for the two estimates the percentages of 9834 percent for total recordable cases and 9627 percent for DART cases are not statistically different Overall the universe estimates for thi s year are consistent with the level of accuracy observed for employer injury and il lness record keeping over previous years of the audit program OSHA applied a statistical test to the accuracy estimates for CY 2006 and CY 2005 and found no significant difTerence in the means for either total recordable or DART cases Among manufacturing and non-manufacturing the overall percent of establishments below the threshold of accuracy was si milar for total recordable and DART cases64

The preamble then shifts from this general discussion on the accuracy of OSHA 300 Logs to a discussion of a series of articles in the Charlotte Observer al leging a serious undershyreporting ofMSDs at poultry plants in North and South Carolina If the allegations in those articles are accu rate it is unclear as to why some appropriate enforcement action was not taken by the responsible state agencies to remedy compliance issues that appear to go far beyond OSHA rccordkeeping What is clear beyond any doubt is that if the allegations involving those poultry processing sites are accurate having an MSD column would not make a bit ofdifterence

64 OSIIA Data Initiative ColleClion Qllality COnroi AnalySiS aAudits on CY 2006 Employer Injury and Illness Recordkeeping ffNAL REPORT November 25 2009 Preparedor Office of Slat isIical Analysis Occupational Safct) and Ilealth Administration Prepared by ERG Lexington MA amp National Opinion Rtsearch Centcr Chicago IL p I-S-4

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As senior OSHA personnel in both Democratic and Republican administrations have stated over the years the great majority of employers care about the health and safety of their employees and try to do the right things to protect them from ham Having recognized that fact OSHA should also recognize that it is inappropriate as a matter of law and public policy to focus on or to cite to the aberrant behavior of a few as the justification for adoption of a new broadly applicable legal requirement

Applying the theory that statistics can be used to say whatever you want them to say OSHA proceeds to assert

Employer use of restricted work and job transfer has grown significant ly during the past decade In 1997 for instance occupational injuries and illnesses involving restricted work or job transfer accou nted for 36 of all cases In 2007 they accounted for 43 of all injuries and illnesses 65

OSHA therefore uses injury and illness rates (eg TRC = total recordable cases DART = days away from work job transfer or restriction cases DAFW = days away from work cases DJTR = days of job transfer or restriction only cases) as the best measure of performance and trends except when it does not support its pol itically-directed objective According to BLS the overall from 11 in DJTR has trended slightly downward from 2003 and 2004 to 10 in 2005 and 2006 to 09 in 2007 and 200866 Clearl y that category ofcases has not grown at all in other words OSHA ignored the governments own statistics and reported data that are factually incorrect and materially misleading This behavior is in direct contravention of the Data Quality Act and OMB guide lines for reporting the use of scientific data

That inconvenient detai l led OSHA to search for another stat istical analysis to support its political objective of showing significant growth in transfer and restricted work cases With a continuing decline in the tota l number of cases a stat istical analysis based on total recordables would not work OSHA s solution is to usc percentages of recorded cases as a reference With the other types of recordable cases going down at a faster rate than DJTR the portion of recordable cases falling into the job transfer and restricted would be greater which OSHA translated into significant growth

OSHA goes on to state

As the number of MSD cases being shifted from days away from work to restricted work continues to grow there will be fewer and fewer MSDs represented in BLS detailed statistics on cases with days away from work61

Contrary to what OSHA asserts there is no evidence of a shift from days away from work cases to restricted work cases To the contrary the evidence clearly shows that the DAFW rate is falling faster than the DJTR Inslead of acknowledging the positive efforts made

6S 75 Fed Reg p 4733 col 2 Olin 29 2010) 66 WORKPLACE INJURms AND ILLNESSES - 2008 USDL-09-1302 October 292009

hltpllwwwblsgovnewsreleaselpdfoshpdf 61 75 red Reg p 4733 col 2 (bn 29 2010)

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by employers through their return to work programs which Congress clearly encouraged in adopti ng the American with Disabilities Act Amendments of2008 it appears that OSHA is biased toward the view that there is widespread gaming of the system The great majority of employers who sincerely care about the health and safety of their employees do not bring them back to work before they are physical ly and mentally ready to return to work It is unfortunate that OSHA has not looked beyond the aberrations alleged in the Charlotte Observer Instead of extrapolating on the basis of the lowest common denominator OSHA might consider asking a representative sampl ing o f human resources personnel about the practical HR prob lems that would be created if an employer establ ished a practice of bringi ng an employee back to work before they cou ld be productive simply to avoid recording a days away case

3 The addition ofa separate MSD column would harm rather than improve the quality of MSD recordkeeping and statistics

Presently recordable determinations for conditions that might be classified as MSDs are made under the gene ral criteria applicable to all inj uries and illnesses The Bureau of Labor Statist ics (BLS-and derivati vely OSHA---estimate the total number of MSDs by addi ng resu lts from six nature of injury codes sprains strains and tears (code 021) back pain- hurt back (code 0972) soreness pain hurt except the back (code 0973) carpa l tunne l syndrome (code 1241) hern ia (code 153) and arthropathies and related disorders (arthritis) (code 171)6amp There is an act ive and heated debate as to the appropriateness of including each ofthese codes within the tally but at least the debate is informed by the underlying BLS coding information

Under OSHAs proposed Section 190412 on the other hand employers wou ld be instructed to determine formally whether a particular condition constitutes an MSD They would do so without the benefit of any special criteri a for determining which muscu loskeletal disorders to record069 Instead of an MSD count composed of BLS codes fo r which the merits of inclusion in the tally can be indiv idually assessed the MS D checkbox will prod uce a si ngle total that will be assumed to represent a definitive stati stic based on the uneducated guesses of both em ployees and employers Because it wou ld be gathered through a process that presumes the same relative certainty as in any other deci sion whether to record an injury or illness it will be viewed as a definitive estimate that reports the national scope ofMSDs with some precision But it will bc a fal se prccision fo r employers will be designating----or declining to designat(shyconditions as MSDs without any reliable or workable means for making that decision

Without a means of making rational judgments the dec ision whether to record incidents implicated by the vague MS D concept will generate an irrat ional and arbitrary recordkeeping system The result ing data will be ungrounded and unreliable--but the real danger is that they will be assumed to be reliable purporting to ta lly the exact phenomenon at issue MSDs The outcome will be damage to the very system of reporting that Section 1904 12 seeks to improve

The agencys insistence on granting these conditions a new formal definition as MSDs creates the appearance that employers are facing a di screte and definable group of cond itions wh ile in rea lity the category of complaints commonly referrcd to as MSDs is as demonstrated above broad and amorphous While the lack of precision in current BLS statistics is ev ident OSHAs proposed modification to the recordkeeping forms will onl y make an unwieldy situat ion

61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse

4 The MSD column would not advance initiatives furthering OSHAs statutory objectives but will result in a misallocation of OSHAs limited resources

OSHA asserts that the MSD column would assist the agency in targeting inspection outreach guidance and enforcement efforts at MSDs That assertion is based on the erroneous premise that the collected information would provide quality data on MSDs The proposed MSD column would not be useful for any of those purposes rather the mere existence of the column places a superficial spotlight on MSDs and will lead OSHA to direct an inordinate portion of its resources to address the perceived MSD issue OSHA will be chasing the chimera primarily composed of idiopathic low back pain because those comprise the large majority of soft tissue complaints Indeed if OSHA were to properly exclude low back pain from this aggregation it is possible that the numbers of cases would be too small to be cognizable as a regulatory imperative

With regard to enforcement OSHA uses both the National Emphasis Programs and Site Specific Targeting Program to focus on those employers with seemingly high incidents of workplace injuries and illnesses The discrete statistics generated by the MSD column even if they were not inflated by the proposed revocation of the special rule for minor musculoskeletal discomfort will lead OSHA to misdirect its resources toward an amorphous and imprecise disease OSHA will devote its resources to battling that which escapes true definition and may defy workplace cures given the universally recognized multifactorial causation ofMSDs In this context of uncertainty to require a separate MSD column is more politics than rational rulemaking It would be inappropriately used to transform the controversial and elusive into the clear and unmistakable The large collection of vaguely described conditions of uncertain causation referred to as MSDs would be inaccurately portrayed as a precise statistical base for the purpose ofjustifying further regulatory and enforcement initiatives - all based on principles that Congress and then OSHA found unworkable

Based on the level ofMSDs recorded OSHAs compliance officers wi1lthen be sent to numerous workplaces and will find precisely nothing unusual They will find employers who have tried everything under the sun and those who have given up after extensive efforts to reduce or eliminate these complaints They will make suggestions that have already been tried and failed to have an impact on the cases Much effort and expense will be expended including large legal fees but in the end OSHAs efforts will leave nothing changed This is exactly the wrong approach

In addition given the debate over the work-relatedness of MSDs it is clear that a separate MSD column is not consistent with OSHAs legal mandate OSHA is charged with reducing occupational injuries and illnesses not with eradicating disparate and multi-facelCd musculoske letal complaints Any effort to extend OSHAs responsibilities to those condit ions that bear only a disputed relationship to the workplace will reduce OSHAs ability to satisfy its primary and arguably sole responsibility of ensuring that employees do not sufTer work-related injuries and illnesses Misleading and inflated MSD statistics generated from the proposed Form 300 Log will inevitably lead OSHA to devote its energies to reduce conditions that are rooted in environments far beyond the control of employers

What OSHA should do is ask NIOSH to support real research on these conditions to

32

deve lop definitions for conditions that are tru ly workmiddotrelated such that remedies and preventive measures can be prospectively evaluated to find rcal causes and cures This research effort has not received the support it deserves which leaves OSHA in the same position it was in 200 I not knowing much at all about soft tissue complaints or even how to define them

5 Having an MSD column at the establishment level would not benefit employers and employees in quickly identifying and tracking the incidence of MSDs at the facility

Again for the reasons prev iously stated thi s asserted benefit is based on the erroneous premise that there is a workable definition of the term MSD that wou ld reliably record significant workmiddotrelated cond itions Furthermore when OSHA rescinded the MSD provisions of 190412 in June of2003 it clearly and persuasively explained that the column would not provide a benefit to the employer and employees in addressing MSDs at the establishment level

The MSD column would not be a useful tool in addressing MSDs at the establishment level for two reasons First because the column would show only the total number of MSDs that occurred in an establishment and nothing about the nature or cause of these disorders it would be of very little practical use in devising abatement methods for ergonomic hazards Second to the extent that employers and workers believe that the total count ofMSD cases is relevant in an establishment the number is easily obtainable without the column requirement 7o

Nothing in the record suggests that there are objective data or evidence to change this conclus ion The only material difference is the change of administrations thus placing this proposal in a po lit ical context rather than a workplace safety and health context

E OSHA has materially understated the costs of compliance with the proposed rule and has no factual basis for certifying that the Proposed Rule would not have a significant economic impact on a substantial number ofsmall entities and therefore avoiding compliance with the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act

In addition to the various levels of confusion and inaccuracy we believe the proposed rule would impose substantial addit ional costs on employers OSHAs estimate that this new regu lation wou ld take a mere five minutes to learn and understand and then an additional single minute to record each MSD is astounding Fundamentally this proposal represents a new recordkeeping regimen for a set of highly complicated multi middot factorial conditions that are not well understood either by employers or the medical profeSSion

In light of the changes that would be effected by this proposal and the measures that would be required in the effort to properly implement it we believe it is clear that OSHAs estimate of the costs of compliance understates the real cost by some orders of magnitude We bel ieve it is also clear that OSHA has no factual basis for its certification that the proposed rule

70 68 Fed Reg 38603-4

33

would not have a significant economic impact o n a substantial number of small ent itics 1l and that accordingly a SBREfA panel should be convened to analyze th is issue if OSHA plans to procecd with thi s initiative72

Beyond the extensive time and costs requ ired to become familiar with and develop a procedure for implementing the proposed rule we believe employers will incur the following costs

(I) the cost of sending employees for medical evaluations to detennine the nature cause and severity of their injuries or conditions including compensation for any time spent (2) the cost of any penalties OSHA imposes due to allegedly incorrect recordation of an

alleged work-related injury (3) the costs of target cd inspections and ensuing citations triggered by erroneously

overstated lotal injury or MSO rates (4) the cost ofchallengi ng adverse recordation determinations by OSHA and (5) the adverse financial impact resulting trom the publication of erroneously overstated andor

misleading total injury rates or MSD rates - which would result in loss of good wi ll potential loss of government contracts and the effects of OSHAs announced use of shaming tactics to influence employers their customers and ultimately the consumer

F The proposed rule does not comply with the paperwork red uction act

The Pape rwork Reduction Act (PRA) 44 US C sectsect 3501 ef seq 1) was adopted by Congress to ensure the integrity quality and utility of the Federal stati stical system and to ensure

71 5 USc sect 605(b) n 5 USC sect 609(b) n Section 3501 Purposes Provides as follows The purposes of this subchllpter are toshy

(I) minimize the papentork burden fo r individuals small businesses educational and nonprofit institutions Federal contractors State loclll and tribal governments and other persons resulting from the collection of information by or for the Federal Government

(2) ensure the grcatcst possible public benefit from and maxi mize the util ity of information created collected maintained used shared and disseminated by or for the Fcderal Government

(3) coordinate integratc and to the extent practicable and appropriate make uniform Federal information resources managemcnt policies and practiecs as a means to improve the productivi ty erticicney and effeetivcncss of Government programs including the reduction of information collection burdens on the public and the improvement ofscrvice delivery to the public

(4) improvc the quality and usc of Federal information to strengthcn decision making accountability and openness in Government and socicty

(5) minimizc the cost to the Federal Government of the creation collection maintenance usc dissemination and disposition of information

(6) strengthen the pannership between the Federal Government and State local and tribal governments by minimizing the burden and maximizing the util ity of information created collected maintained used disseminated and retained by or for the Federal Government

(7) provide fo r the dissemination of public information on a timely basis on equitable terms and in a manner that promotes the utility of the information to the public and makes effcctive use of information technology

(8) ensure that the crelltion collection maintenance usc dissemination and disposition of information by or for the Federal Govcrnment is consistent with applicable laws including laws relating toshy

(A) privacy and confidentiality including section 552a of titlc 5 (8) security of information including section 11332 of title 40 and (C) access to information including scction 552 oftit1e 5

34

that information technology is acquired used and managed to improve performance of agency missions includ ing the reduction of information collection burdens on the public The PRA and its implementing regulations forbid OSHA from adopting and enforcing a recordkeeping requirement unless and until OSHA demonstrates (to OMS) that it has taken every reasonable step to ensure that the proposed collection of information

(i) Is the least burdensome necessary for the proper performance of the agencys functions to comply with legal requirements and achieve program objectives (ii) Is not duplicative of information otherwise accessible to the agency (ii i) Has practical utility and (iv) Minimizes the cost to the agency o f collecting processing and using the information but not by means of shifting disproportionate costs or burdens onto the public 5 CFR sect J3205(d)(J)

The term Practical utility means the actual not merely the theoretical or potential usefulness of information to or for an agency taking into account its accuracy validity adequacy and reliability 5 CFR sect 13203(1)

Furthermore absent demonstration of a statutory requirement or other substantial need OMB may not approve a collection of information-shy

(1) In connection with a statistica l survey that is not designed to produce valid and reliable resu lts that can be generalized to the universe of study or (2) Requiring the use of a statistical data classification that has not been reviewed and approved by OMB 5 CF R sect J3205(d)(2)

Finally OMS is responsible for making an independent determination as to whether the collection of information as submitted by the agency is necessary for the proper performance of the agencys functions 5 CF R sect 1320 5(e)

The criteria stated above have not been fulfilled The dramatic expansion of what will be considered recordable and work-related under the Proposed Rule will frustrate n01 support the objectives ofthe OSH Act and OSHAs own stated goal of using the collected data to focus intervention efforts on the most dangerous worksites and worst safety and health hazards 74 At the same time the expanded scope of those terms will place added burdens on employers with regard to the records and logs they must maintain This is in direct conflict with the aSH Acts directive as to what constitutes a recordable injury and its command that OSHA collect data that accurately portrays workplace health and safety problems Nor would the inaccurate and misleading collection of information required by the Proposed Rule meet the practical utility requirement for mandatory information collection demands For all of these reasons the proposed information collection would not represent action that is the least burdensome necessary for the proper performance of the agencys functions to comply with legal requirements and achieve program objectives as the required under the PRA

(9) ensure the integrity quality and utility of the Federal statistical system (10) ensure that information technology is acquired used and managed to improve performance of agency

missions including the reduction of information collection burdens on the public and (11) improve the responsibility and accountabil ity of the Office of Management and Budget and all other

Federal agencies to Congress and to the public for implementing the information collection review process information resources management and related policies and guidelines established under this subchapter 74

61 Fed Reg at 4030

35

G OSHA omitted material information and mischaracterized the nature and scope of this proposal

1 The notice of proposed rulemaking was procedurally defective

Every proposed rule or Notice of Proposed Rulemaking (NPRM) must be published in the Federal Register 75 The required content of the preamble of an NPRM published in the Federal Register is further specified in I CFR sect 1812 Preamble requirements Section 1812 provides as follows

(a) Each agency submitting a proposed or final rule document for publication shall prepare a preamble which will infonn the reader who is not an expert in the subject area of the basis and purpose for the rule or proposal [emphasis added

(b) The preamble shall be in the following fonnat and contain the following information[emphasis added]

AGENCY (Name of is-s-u-in-g- a-g-e-ne- y-)-=-ACTIO=N-_________

(Notice oflntent) (Advance Notice of Proposed Ruiemaking) (Proposed Rule) (Final Rule) (Other)

SUMMARY _ _ ______

(Brief statements in simple language of (i) the action being taken Oi) the circumstances which created the need for the action and (iii) the intended effect of the action) [emphasis added]

DATES________

(Comments must be received on or before ) (Proposed effective date _ _ ) (Effective date _ _ ) (Hearing __) (Other __)

ADDRESSES_______

(Any relevant addresses)

FOR FURTHER INFORMA nON CONTACT

1) 5 USC sect 553(b)

36

(For Executive departments and agencies the name and telephone number of a person in the agency to contact for additional information about the document [Presidential Memorandum 41 FR 42764 September 28 1976])

SUPPLEMENTARY INFORMATION______ _ _

(See paragraph (c) of this section) (c) The agency may include the following information in the preamble as appl icable (1) A discussion of the background and major issues involved (2) In the case ofa final rule any significant differences between it and the proposed rule (3) A response to substantive public comments received and (4) Any other information the agency considers appropriate

In short there are two basic requirements First the preamble of the NPRM must inform the reader who is not an expert in the subject area of the basis and purpose for the proposed rule Second the SUMMARY section of the preamble must contain brief statements in simple language of (i) the action being taken (ii) the circumstances which created the need for the action and (iii) the intended effect of the action Based on a review of the preamble of the January 29 20 [0 NPRM it is clear that neither of those requirements has been met

The SUMMARY section in the preamble of the January 29 20[0 Federa[ Register notice reads as follows

SUMMARY OSHA is proposing to revise its Occupational Injury and Illness Recording and Reporting (Recordkeeping) regulation to restore a column to the OSHA 300 Log that employers would use to record work-related musculoskeletal disorders (MSD) The 200 1 Recordkeeping final regulation included an MSD column but the requirement was deleted before the regulation became effective This proposed rule would require employers to place a check mark in the MSD column instead of the column they currently mark if a case is an MSD that meets the [existing] Recordkeeping regulations general recording requirements [language in italics added]

Based on the language of the quoted SUMMARY confirmed by the OSHA press release announcing this action76 OSHA would have one believe that the proposed rule would

76 OSHAs January 28 20 I 0 Press Release I O-135-NAT provides in part

us Department of Labors OSHA proposes recordkeeping change to improve illness data WASHINGTON -- The US Department of Labors Occupational Safety and Health Administration (OSHA) is proposing to revise its Occupational Injury and Illness Recording and Reporting (recordkeeping) regulation by restoring a column on the OSHA rorm 300 to bcHer identify work-related musculoskeletal disorders (MSDs) The rule does not change existing requirements for when and under what circumstances employers must record musculoskeletal disorders on their injury and illness logs

37

require nothing more than inserting a check in the MSD column for cases that would already be on the OSHA 300 Log under the existing and already challenging recording criteria As we make clear below the quoted SUMMARY describes only one of the three major changes apparently sought to be implemented through the proposal It makes no attempt to describe the circumstances which created the need for the action or the intended effect of the action

First as rep resentatives of the Department of Labor and OSHA acknowledged during the March 9 20 I 0 publ ic meeting OSHA is also proposing to amend the existing middotRecordkeeping regu lations genera l recording requirements by revoking the interpretation on preventive restrictions--contained in the NAM settlement agreement- that has been in place for over eight years Because this language has been relied upon by employers and OSHA field personnel in enforcing the current recordkeeping regulation OSHA is now bound by that interpretation as ifit was part of the regulatory text In other words while not officially regulatory tcxt that interpretation may be changed only through notice and comment rulemaking in which the agency affinnatively notes that it is proposing a change solicits comment on the change and then objectively weighs the pros and cons of retaining changing or deleting this language As stated by the US Court of Appeals for the District of Columbia in a long line of cases

[A]n interpretat ion ofa legislative rule cannot be modified without the notice and comment procedure that wou ld be required to change the underlying regulation-otherwise an agency could easily evade notice and comment requirements by amending a rule under the gu ise of reinterpreting it Molycorp Inc v EPA 197 F3d 543 546 (DCCir I 999) see also Paralyzed Veterans of Am v DC Arcna LP 117 F3d 579 586 (DCCir1997) Alaska Profl Hunters Assn Inc v FAA 177 F3d 1030 1034 (DCCir1999) (When an agency has given its regulation a definitive interpretation and later s ignificant ly revises that interpretation the agency has in effect amended its rule something it may not accomplish without notice and comment) and Paralyzed Veterans of Am v DC Arena LP 117 F3d 579 586 (DCC ir1 997) (Once an agency gives its regulation an interpretation it can only change that interpretation as it would formally modify the regulation itself through the process of notice and comment rulemaking) 77

In both the offic ial SUMMARY section of the preamble and the summary section of the SUPPLEMENTARY fNFORMATION sect ion o f the preamble OSHA states that the proposed rule would restore a column to the OSHA 300 log that would be used to record workshyrelated MSDs There is no mention of the fact that OSHA is proposing any other changes to the rule much less a material change in the general recording criteria for restricted duty cases Buried eight pages into the NPRM under the heading Subject ive Symptoms is a discussion that starts out with the following

OSHA intends to remove language from the Recordkeeping Compliance Di rective that says that minor musculoskeletal

n pound nvironmentallnlegrity Project v EPA 425 F3d 992 995 and 997 (DC Cir 2005)

38

discomfort is not recordable under Sec 19047(b)(4) as a restricted work case ifa health care professional determines that the employee is fully able to perform all of his or her routine job functions and the employer assigns a work restriction for the purpose of preventing a more serious injury (CPL 02-00-135 Chapter 2 Section I (Fraquo 78

According to OSHA the agency planned to take this action to eliminate any potential for confusion and furthe rm ore

OSHA believes that the language in the Compliance Directive is not necessary because sect 19044 of the Recordkeeping regulation clearly and fully specifies when cases involving work restrictions and transfers must be recorded 79

The quoted language strongly suggests that no material change in the law is being proposed but simply a clarification to avoid confusion However OSHA then proceeds to explain that it rejected suggestions made during the rulemaking leading to the current rule to adopt an exception to recordability for voluntary or preventive job transfers The agencys statement to the effect that it is simply clarifying and not changing the current rule conflicts with the fact that it is announcing its intention to withdraw an interpretation that it initially rejected in the rulemaking leading up to the 200 I Final Rule 80 and then accepted as part of a settlement agreement resulting from a legal challenge to that rule

OSHA apparently did not want to acknowledge that the NAM settlement agreement language on preventive transfers was the rule ofthe land and that pursuant to the due process requirements renected in the Administrative Procedure Act (APA) it could only be modified by notice and comment rulemaking However recognizing the real possibi lity that notice and comment rulemaking would be required by the APA OSHA is attempting to claim that it is putting stakeholders on notice while not highlighting this change or inviting comments on it At the March 9 public meeting DOL and OSHA staff defended this approach on the basis that the issue of revoking the preventive transfer settlement language was recognized by counsel fo r the

7S 75 Fed Rcg 4735 col 2 (Jan 29 2010) N Id

IO Thc cited language reads as follows from 75 Fed Reg 4735 col 3 and 4736 col I The agency underscored thi s point in the preamble discussion of job transfer in the 2001 rule Thc agcncy rejected suggestions to add an exception to recordability lor voluntary or preventive job transfers Thc agency explained that this concept is not relevant to the rccordkceping rule

Translers or restrictions taken before the employee has experienced an injury or illness do not meet the first recording requirement of the rccordkeeping rule ie that a work-rclated injury or illness must have occurred for recording to be considered at all bullbull J Jowever transfers or rcstrictions whose purpose is to allow an cmployee to recover from an injury or illness as well as to keep the injury or illness from becoming worse are recordable because they involve restriction or work transfer caused by injury or illness All restricted work cases and job transfer cases that result from an injury or ilness that is work-related afe recordable on the employcrs Log (66 FR 5981)

39

NAM and the Chamber We believe this approach to rulcmaking is both misleading and improper as a matter of law and public policy As stated in I CFR 1812 the agency shall prepare a preamble which will inform the reader who is not an expert in the subject area ofthe basis and purpose for the rule or proposal (emphasis added) OSHAs preamble while including a discussion on this point understates it and mischaracterizes the proposed regu lation as merely restoring the OSHA 300 Log column for MSDs and relying on the identical definition ofMSDs from the earlier version of this rule when in reality this proposal greatly expands the number of cases employers will have to consider and record

2 The NPRM suggests that OSHA is improperly attempting to redefine MSDs as illnesses rather than injuries

Without providing any meaningful notice or any explanation to stakeholders OSHA appears to be attempting to reverse the longstanding OSHA determination that MSDs are injuries by redefining all MSDs as illnesses rather than injuries

In the OSHA ergonomics rulemaking one of the major scientific-legal issues on which OSHA received extensive public comment was whether MSDs were injuries or whether they were illnesses caused by a harmful physical agent (a health hazard) under the OSH Act It was well recognized that the distinction between illnesses (caused by toxic substances or harmful physical agents) covered by OSHA health standards and injuries covered by OSHA safety standards had potentially enormous consequences Under Section 6(b)(5) of the OSH Act health standards generally must eliminate or control significant risks of harm to the extent technically and economically feasible Under Section 6(b) and 3(8) of the OSH Act the costs of compliance with a safety standard generally must be reasonably related to the benefits of compliance with that standard

After a detailed and comprehensive analysis ofthis critical issue OSHA determined that the conditions encompassed by the tenn MSDs as used by OSHA referred to injuries rather than illnesses and were inconsistent with the tcnn illness 8) Notwithstanding that well-supported and we believe inevitable determination OSHA appears to have proceeded with this rulemaking as if it had come to the oppos ite conclusion on that issue as illustrated by the fol lowing preamble text

Moreover the MSD category is no broader than the other illness categories that are included as columns on the OSHA 300 Log Like MSDs each ofthese columns combines a class or range of illnesses or disorders into a single category OSHA believes that information from the MSD column would be at least as useful as data generated from the other illness columns already present on the Log Furthermore OSHA believes that compared to MSDs

81 Sec 65 Fed Reg 68270-2 This determination WdS consistent with the approach taken by the California Superior Court in its revicw of Californias Repetitive Motion Injury Regulation 8 CCR 5110 Pulaski v Cal Occup SafelY amp Heallh SId Bd 90 Cal Rptr 2d 54 (1999) It is also consistent with the definition ofthc tcrm musculoskeletal problems in the ANSI A 1040 Standard forthe Reduction ofMusculoske1etal Problems in Construction cited by OSHA 7S Fed Reg 4734 col I While we have referenced the Al 040 definition of middotmusculoskcletal problems for this limited purpose we wish to be clearthat as previously discusscd thc A I 040 standard was adopted through an invalid process and cannot be viewed as a national consensus standard as that term is used in Sections 3(9) and 6(b)(8) of the aSH Act

40

each of these other categories ind ividually account for a smaller fraction of the total number of occupational illnesses MSDs on the other hand accounted for significantly more occupational illnesses than the combined total for the specific illnesses currently listed on the OSHA 300 Log OSHA believes it is reasonable and appropriate to have a column on the log for the type of case that accounts for such a significant portion of all occupational illnesses

OSHA also bel ieves that restoring the MSD column on the 300 Log would help to eliminate some of the uncertainties in existing national occupational illness statistics OSHA believes that MSDs account for a large portion of nail other illnesses In 2000 the last year the OSHA 200 Log contained a repeated trauma column repeated trauma was the dominant illness reported accounting for 67 of all illnesses Even ifhearing loss cases were removed repeated trauma stil l would have accounted for the majority of all occupational illnesses reported that year OSHA believes that having the MSD column not only would help to eliminate some of the uncertainties concerning occupational illnesses in the national statistics but wou ld also provide better information on the nature of the lare proportion of illnesses currently rworted in the all other Illnesses column lemphasls added shy

The characterization of the cases herein has potentially significant impacts on future rulemaking for addressing MSDs If MSDs are illnesses presumably OSHA believes that section 6(b)(5) applies to any standard that would be promulgated to address them As is well known the law requires OSHA to set the standard that most adequately assures to the extent feasible that employees are protected While this is a laudable goal the result would be to require actions on the part of employers wholly out of proportion to the kinds of conditions (subjective symptoms) that would be the subject ofthis rulemaking

Given that OSHA defined MSDs as injuries in the prior rulemaking if the agency now intends to define MSDs as illnesses it needs to identify the issue for interested persons and seek comment not slip the change through without giving it any attention at all Once again OSHA is skirting its obligations under the APA

From a procedural standpoint we be lieve the January 29 2010 NPRM in this proceeding was materially misleading and legally inadequate with respect to both of these issues We believe that a new rulemaking to take comment on the removal of the compliance directive language and OSHAs characterization ofMSDs as illnesses would be in order with a new Federal Register notice that adequately informs the publ ic as to the scope of the proposed changes in accordance with the APA and 1 CFR 1812 and allows for an extended comment period and hearing more appropriate to address the complexity oftile issues actually raised by this initiative Alternatively OSHA should at least extend the comment period for this rulemaking an additional 60 days and should specifically request employers to provide information on the impact of these changes

82 75 Fed Reg 4732 Consistent with our analysis the associated January 28 2010 OSHA press release Rdease Number ]Omiddot]35middotNAT contains the following heading US Department of Labors OSHA proposes recordkeeping change to improve illness data(emphasis added)

41

3 Compliance with the APA is More than a Ritual

OSHA has not complied with the applicable requirements of the APA in this rulemaking with respect to its plan to overturn the rule governing minor musculoskeletal discomfort or to overturn the well-established classification ofMSDs as injuries (rather than illnesses) OSHA simply announced the first reversal without acknowledging what it was doing and made the second change on a stealth basis but for the heading in its press release which clearly does not satisly the req uirements of the APA As the DC Circuit reminded OSHA in Chamber of Commerce oflhe United States v OSHA SJ

The Assistant Secretary should not treat the procedural obligations under the APA as meaningless ritual Parties affected by the proposed legislative rule are the obvious beneficiaries of proper procedures Prior notice and an opportunity to comment permit them to voice their objections before the agency takes final action Congress enacted 5 USc sect 553 in part to aftord adequate safeguards to private interests lCitations omitted] Given the lack of supervision over agency decision making that can result from judicial deference and congressional inattention see Cutler amp Johnson Regulation and the Political Process 84 Yale LJ 1395 (1975) this protection as a practical matter may constitute an afTected partys only defense mechanism

An agency also must not forget however that it too has much to gain from the assistance of outside parties Congress recognized that an agencys knowledge is rarely complete and it must learn the bull viewpoints of those whom the regulation will affect (Public) participationmiddot in the rule-making process is essential in order to permit administrative agencies to inform themselves [Citations omitted] Comments from sources outside of the agency may shed light on specific information additional policy considerations weaknesses in the proposed regulation and alternative means of achieving the same objectives [Citations omitted] By the same token public scrutiny and participation before a legislative rule becomes effective can reduce the risk of factual errors arbitrary actions and unforeseen detrimental consequences See Freedman Summary Action by Administrative Agencies 40 UChLLRev I 27-30(972)

Finally and most important of all highhanded agency rulemaking is more than just offensive to our basic notions ofdemocratic government a failure to seek at least the acquiescence of the governed eliminates a vital ingredient for effective administrative action See Hahn Procedural Adequacy in Administrative Decisionmaking A Unified Formulation (Pl I) 30 AdLRev 467 500-04 (1978) Charting changes in policy direction with the aid of those who will be affected by the shift in course helps dispel suspicions of agency predisposition unfairness arrogance improper influence and ulterior motivation Public participation in a legislative rules formulation decreases the likelihood that opponents will attempt to

Sl 636 F2d 464 470-1 coc Cir 1980)

42

sabotage the rules implementation and enforcement [Citations omitted]

OSHAs decision to modi fy the rule in thi s fashion reinforces industrys suspicions that OSHA is intent on adopting the proposal based on a political viewpoint rather than objective information and analysis We object to the Administration issuing a legislative rule without fully complying with the Administrative Procedure Act As ChiefJustice Charles Evans Hughcs declared four decades ago Democracy is a most hopeful way of life but its prom ise of liberty and of human betterment wi ll be but idle words save as the ideals ofjustice not on ly between man and man but between government and cit izen are held supremeS4

4 The required consultation with ACeSH was procedurally defective

OSHA acknowledged that it was required by the Contract Work Hours and Safety Standards Aet (Construction Safety Act) (40 USc 3704) and OSHA regulations (29 CFR 19111 O(a) and 191 23(araquo to consult with the Advisory Committee on Construction Safety and Health (ACCS H) about this proposal The transcript of the December 10 and 11 2009 ACCSH meeting revea ls that the nature of the consultation regarding this issue was cursory and lacked sufficient detail for the Advisory Committee to make an informed decision

Section 19111 O(a) provides as follows

The Assistant Secretary shall consult with the Adv isory Committee on Construction Safety and Health established pursuant to section 107 of the Contract Work Hours and Safety Standards Act in the formulation ofa rule to promulgate mod ify or revoke a standard The Assistant Secretary shall provide the committee with any proposal o f his own together with all pertinent factual information available to him including the results of research demonstrations and experiments The committee shall submit to the Assistant Secretary its recommendations regarding the rule to be promulgated within the period prescribed by the Assistant Secretary which in no event shall be longer than 270 days from the date of initial consultation (emphasis added)

In specifying an outside response time 0[270 days we bel ieve it is clear that ACCSH is expected to be given the time necessary to carry out a responsible review of a proposed rule and consu lt with appropriate individuals The manner in which the ACCSH was given this matter suggests a rush by OSHA to the ACCSH approval Furthermore the lega l standard o f disclosure is all pertinent factual information which would encompass all factual information as determined by a knowledgeable and objective individual The nature of the ACCS) I di scussion on December II strongly indicates that all pertinent factual information was not provided to ACCSH nor was there the ringing endorsement of the proposed regulation OSHAs summary of the ACCSH action would suggest

~ Address of Chief Justice Il ughes J50th Anniversary ofhe Supreme Court (Feb I 1940) reprinted in 309 US at v xii ( 1940)

43

The transcript ofthe two day meeting makes clear that the information packet on this proposal was provided to the members of ACCSHjust before members began trave ling to the meeting and then again on the first day of the meeting (Tr 349 I 5-7 352 1 13-16) allowing inadequate time for the members to review the materials and consult with their respective organizations or anyone in advance of the meeting Second ACCSH members were relying on DOL and OSHA personnel to explain the substance and impact of the proposal (Tr 352 I 2-7) Th ird in describing the proposal to ACCSH the DOL and OSHA staff consistent with the subsequently issued NPRM (described above) om itted material information and mischaracterized the nature and scope of the Proposed Rule in stating that this change docs not change the criteria for what gelS recorded at all (Tr 354 I 13 through 355 I l3)

OSHA Okay And I think that the answer to that is that this change does not change the criteria for what gets recorded at all MSDs get recorded just like any other injury or illness

MEMBER A Right

OSHA You know so it doesnt have any impact that way but it does change the distribution of check marks over these other categories So right now theyre being put into injuries or all other illnesses and those are going to shift then into this MSD column to some degree

CHAIRMAN So the numbers will remain the same shy

OSHA Yes shy

CHAIRMAN Its just that theyre going to be more defined on what area its going to be And thats shy

MEMBER B Theyre going to be sorted differently

OSHA Correct

Finally ACCSH voted to support the Proposed Rule at the same meeting where it was presented We have no doubt that OSHA indicated to ACCSH that it sought a quick approval by ACCSH If OSHA had to wait for the next ACCSH meeting to obtain the Committee s support it might not have been able to proceed in time to adopt a final rule in time for its targeted implementation on January 1 201 I

H There is Insufficient Time to Implement the Proposed Rule by January 12010

We have also been advised by members of the NAM and the Chamber that there is insufficient time to implement the proposed changes by January 1 2011 Many larger employers would be required to make substantial changes to their current recordkeeping systems to achieve compliance with the Proposed Rule including system-wide software updates and training of personnel charged with recording injury and illnesses

Assuming OSHA is able to review summarize and publish the final regulation by August

44

or September- an outrageously ambitious schedule given OSHAs failure to comply with the APA SBREFA and the PRA and the amount of work necessary given the array of very substantive issues raised by this rulemaking- the development and implementation of such changes cannot be completed by employers as significant software upgrades would be required and key employees would need to be adequately trained in the remaining time

OSHA is required to allow ample and sufficient time for implementation of changes in the regulations and standards it adopts under both its enabling legislation (compliance with OSHAs rules must be feasible) and the APA It must not shirk its duty to be sure that the employer community can make the necessary adjustments before the sword of enforcement falls on their heads

CONCLUSION

In light of the obvious inability to define diagnose or determine the cause ofMSDs with any degree of precision the logical conclusion mandated by the applicable OSH Act criteria is that OSHA must acknowledge the limitations it faces in implementing a workable MSD provision in Part 1904 consistent with its statutory authority and withdraw the Proposed Rule There simply is no medically and scienti fical1y supported definition for the injuries that OSHA expects employers to record OSHAs attempt to establish an MSD co lumn for the OSHA 300 Log fails to serve any useful purpose and would only lead to an inappropriate misallocation of resources that would detract from efforts to advance workplace safety and health in the United States OSHAs cost estimate for this proposal strained credulity and the agency utterly failed to provide an adequate factual basis for the certification necessary to avoid having to comply with the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act Final1y the Federal Register notice was defective as OSHA mischaracterizcd the scope of this proposal and failed to acknowledge the critical reshycharacterization ofMSDs from injuries to illnesses affected by language in the preamble We urge OSHA to abandon this ill -fated attempt to classify that which is impossible objectively to verify or categorile

Respectfully submitted

The Associated Builders and National Association of Home Builders Contractors Inc The National Association of

The Assoc iated General Contractors of Manufacturers America The National Association of Wholesaler-

American Trucking Associations Inc Distributors The Food Marketing Institute The National Oilseed Processors Association Independent Electrical Contractors The National Restaurant Association The International Foodservice The National Retail Federation

Distributors Association The National Roofing Contractors The International Franchise Association Association IPC - Association Connecting The Shipbuilders Council of America

Elect ronics Industries Textile Rental Services Association The MOlor amp Equipment Manufacturers The usChamber of Commerce

Association

45

8jOfCounsel

David G Sarvadi Lawrence P Halprin Keller and Heckman LLP 1001 G Street NW Washington DC 20001 202-434-4100

5~ A substantial portion of the material in these comments was extracted from the August 30 2002 Comments of the National Association of Manufacturcrs (Exhibit 2middot32) filed with OSI JA in OSHA Docket R-02B and prepared by Baruch A Fellner Dcrry Dean Sparlin and Tanya Axenson MaCallair all of whom were then with the law firm of Gibson Dunn amp Crutcher LLP

46

On January 29 2010 the Occupational Safety and Health Adm inistration (OSHA) published a notice in the Federal Register announcing a proposed revision to the agencys Occupational Injury and Illness Recording and Reporting Rule (the Recordkeeping Rule)1 The groups indicated below welcome this opportunity to comment on questions relating to the Proposed Rule

Associated Builders and Contractors Inc (ABC)-ABC is a national construction industry trade association representing more than 25000 merit shop contractors subcontractors materials suppliers and construction-related firms within a network of 77 chapters throughout the United States and Guam ABC member contractors employ more than 25 million skilled construction workers whose training skills and experience span all of the twenty-plus skilled trades that comprise the construction industry Moreover the vast majority of our contractor members are classified as small businesses Our diverse membership is bound by a shared commitment to the merit shop philosophy in the construction industry This philosophy is based on the principles of full and open competition unfettered by the government nondiscrimination based on labor affiliation and the award of construction contracts to the lowest responsible bidder through open and competitive bidding This process assures that taxpayers and consumers will receive the most for their construction dollar

The Associated General Contractors of America (AGC) is the leading association for the construction industry Founded in 1918 at the express request of President Woodrow Wilson AGC now represents more than 33000 firms in nearly 100 chapters throughout the United States Among the associations members are approximately 7500 of the nations leading general contractors more than 12500 specialty contractors and more than 13000 material supplicrs and scrvice providers to the construction industry These finns engage in the construction of buildings shopping centers factories industrial facilities warehouses highways bridges tunnels airports waterworks fac ilities waste treatment facilities dams hospitals watcr conservation projects defense facilities multi -family housing projects municipal utilities and other improvements to real property Unlike many associations in the industry AGe proudly represents both union and open-shop construction contractors

American Trucking Associations lne is a united federation of motor carriers state truck ing associations and national trucking conferences created to promote and protect the interests of the trucking industry Its members include more than 2000 trucking companies and industry suppliers of equipment and services Directly and indirectly through its affiliated organizations ATA encompasses over 37000 companies and every type and class of motor carrier operation

The Food Marketing Institute (FMI) is a national trade association conducting programs in public affairs food safety research education and industry relations on behalfofits 1500 member companies - food retailers and wholesalers - in the United States and around the world FMIs US mcmbers operate approximately 26000 retail food stores and 14000 pharmacies Their combined annual sales volume of$680 billion represents three-quarters orall retail food sales in the United States FMls retail membership is composed of large multi-store chains regional firms and independcnt supermarkets lts international membership includes 200 companies from more than 50 countries FMls associate members include the supplier partners of its retail and wholesale members

75 Fed Reg 4728 (Jan 29 20JO)

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I EXECUTIVE SUMMARY



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MEMBER A Right



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OSHA Correct





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CONCLUSION








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I EXECUTIVE SUMMARY



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8jOfCounsel



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II INTRODUCTION





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MEMBER A Right



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OSHA Correct





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CONCLUSION








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SUMMARY _ _ ______


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Sl 636 F2d 464 470-1 coc Cir 1980)

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MEMBER A Right



OSHA Yes shy



OSHA Correct





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CONCLUSION








Association

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8jOfCounsel



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MEMBER A Right



OSHA Yes shy



OSHA Correct





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CONCLUSION








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8jOfCounsel



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Sl 636 F2d 464 470-1 coc Cir 1980)

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MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

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8jOfCounsel



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10









11












I I 75 Fed Reg 4741 col 3 (Jan 29 2010)

12









13







14











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









11












I I 75 Fed Reg 4741 col 3 (Jan 29 2010)

12









13







14











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46












I I 75 Fed Reg 4741 col 3 (Jan 29 2010)

12









13







14











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









13







14











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







14











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46











15


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46


















17









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









18










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46










19








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46








20










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46










21









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









22









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









23










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46










24











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46











25







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







61 75 Fed Reg 4738 col 3 (Jan 29 2010)

26







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







27






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46






63 75 Fed Reg 4730 citing 66 FR 6030

28






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46






29











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46











30







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







61 65 Fed Reg 68542 69 66 Fed Reg 6 129

31

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46

worse







32









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









70 68 Fed Reg 38603-4

33



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46



















34











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46











61 Fed Reg at 4030

35








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46








SUMMARY _ _ ______


DATES________


ADDRESSES_______




36










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46










37







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







38









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









39








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46








40







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46







41






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46






Sl 636 F2d 464 470-1 coc Cir 1980)

42









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46









43



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46



MEMBER A Right



OSHA Yes shy



OSHA Correct





44



CONCLUSION








Association

45

8jOfCounsel



46



CONCLUSION








Association

45

8jOfCounsel



46

8jOfCounsel



46

EMPLOYER REPRESENTATIVES' COMMENTS BEFORE Docket No. … · The National Roofing Contractors...

Documents

Transcript of EMPLOYER REPRESENTATIVES' COMMENTS BEFORE Docket No. … · The National Roofing Contractors...